0120114323
09-19-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120114323
Agency No. 1E-801-0146-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 24, 2011, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Agency's FAD which found that Complainant failed to show that she was subjected to discrimination as alleged is Affirmed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Denver Processing and Distribution Center (P & DC) in Denver, Colorado. On January 27, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (Cervical) and reprisal for prior protected EEO activity when:
1. On August 13, 2010, her request for light duty was denied;
2. On August 21, 2010, her permanent light duty assignment was withdrawn and she was forced to use leave;
3. On September 1, 2010, management confiscated statements that were intended for her use;
4. On October 1 and 22, 2010, she was subjected to rude and hostile treatment from her supervisor;
5. On October 23, 2010, she was given a light duty assignment with reduced work hours with duties that were outside of her medical restrictions;
6. Beginning November 11, 2010, and continuing, she was not paid for holidays;
7. On November 23, 2010, she became aware that management appealed her request for unemployment benefits but later withdrew the appeal, and;
8. On April 21, 2011, she was given a Light Duty Assignment, which violated her restrictions.
Following an investigation by the Agency, a FAD was produced. The FAD found that even assuming arguendo that Complainant established a prima facie case of reprisal and disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With respect to claims one and two, which involved Complainant's request for light duty and the withdrawal of her permanent light duty assignment, the Agency explained that the National Reassessment Process which took effect in the spring of 2010, required management to examine all operations to determine exactly what work was absolutely necessary and available. As no work was available within her restrictions, her request for additional light duty job was denied. The Agency notified Complainant that her situation would be investigated and during this time Complainant would be provided temporary light duty pending the outcome of the DRAC. Upon review it was determined that Complainant was doing piece meal work so her request to continue performing these duties was denied. Complainant was asked if she would consider work within her restrictions outside of the facility. She indicated that she was not interested in searching for permanent work outside of her current facility so therefore, a search was only conducted at the Denver P&DC. Complainant was later advised that no work was found at her facility.
The Agency explained that with regard to claim three, statements were confiscated from Complainant because she was handing them out to employees who were working. Complainant had been previously told that she was not allowed in the facility when she was off work. Complainant was advised that employees could complete such statements during their breaks but not on the workroom floor, as it disrupted work. Further, management indicated that contrary to Complainant's claim in claim four, management was never rude or hostile to her, but was honest and straight to the point as they were always very busy.
With regard to claim five, where Complainant alleges that she was offered a light duty assignment with reduced work hours and that this was outside of her medical restrictions, the Agency explained that Complainant was offered four hours in automation, which according to her most recent medical documentation was work within her restrictions. Complainant refused the position and did not explain to management why she thought the offer of work in automation was outside her limitations.
Regarding claim six, where Complainant was not paid for holidays, management indicated that Complainant was advised that she would not be paid for holidays because she was on extended leave and not working. This was done in accordance with the Employee and Labor Relations Manual, according to the Agency.
The Agency also found that Complainant failed to show that she was subjected to discrimination when she alleged that management appealed her request for unemployment benefits but later withdrew the appeal. Management explained that that its agent, TALX Corporation, is the official point of contact for all Agency unemployment compensation claims and that the TALX representative appealed Complainant's request for unemployment because the Agency had advised TALX that she had been offered work in October and November 2010. The Agency further maintained that it did not withdraw the appeal but that management elected not to participate in the State Employment hearing. Management indicated that Complainant's disability status or prior EEO activity were not factors.
With regard to claim eight, where Complainant maintained that she was given a light duty assignment which violated her restrictions, the Agency indicated that Complainant was offered eight hours of light duty work on April 21, 2011. The assignment was based on Complainant's limitations dated May 19, 2010. Complainant was offered four hours of manual work and four hours of automation work.
The Agency indicated that with regard to all of her claims Complainant failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. In fact, the Agency indicated that Complainant failed to show that discriminatory animus was involved with regard to any of the incidents alleged. Moreover, the Agency maintained that the incidents alleged when considered together were not severe or pervasive enough to establish a hostile work environment. Accordingly, the Agency found that Complainant failed to demonstrate that she was subjected to discrimination or a hostile work environment.
CONTENTIONS ON APPEAL
Although requesting an extension, Complainant did not provide a brief on appeal. The Agency maintains that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the actions were pretext for discrimination. The Agency asks that the FAD finding no discrimination be affirmed.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if we assume arguendo that Complainant established a prima facie case of reprisal and that she is a qualified individual with a disability, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above and Complainant failed to show that those reasons were pretext for discrimination, or that the incidents even when considered together where severe or pervasive enough to establish a hostile work environment. We also find that she failed to establish that she was denied a reasonable accommodation. Accordingly, we find that the preponderance of the evidence of record does not establish that discrimination occurred. The Agency's FAD is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___9/19/14_________
Date
2
0120114323
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114323