0120064223
01-09-2009
Denise Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Denise Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120064223
Agency Nos. 1H-328-0011-05 & 1H-328-0018-05
DECISION
INTRODUCTION
On June 19, 2006, complainant filed an appeal from a May 16, 2006
final agency 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. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the final agency decision.
BACKGROUND
During the relevant period, complainant was employed as a distribution
clerk at a Florida facility of the agency. On May 7, 2005, complainant
filed a formal EEO complaint alleging that the agency discriminated
against her based on race (African-American), sex (female), and disability
(severe osteoarthritis with ligament damage to left leg) when (1) in a
letter dated December 1, 2004, a Supervisor of Distribution Operations
(S1) instructed complainant not to send medical documentation to the
agency medical unit directly, (2) from December 3, 2004 to January 11,
2005, management denied her overtime, charged her with absence without
leave, and did not allow her to return to work, (3) on February 2,
2005, S1 conducted an investigative interview on complainant alleging
irregular attendance between December 3 and January 11, (4) on March 14,
2005, management failed to reimburse her for 240 hours of various leave
and pay for December 3, 2004 to January 11, 2005, and (5) on March 15
and 16, 2005, S1 charged complainant with unscheduled leave without pay
rather than sick leave.
In a decision dated May 16, 2005, the agency dismissed the entire
complaint for untimely filing of the formal complaint, claims (1) through
(3) for untimely EEO contact, and (3) for failure to state a claim also.
Complainant filed an appeal with this Commission, which was docketed and
then issued as Jones v. U.S. Postal Service, EEOC Appeal No. 01A54572
(August 9, 2005). In Appeal No. 01A54572, the Commission affirmed the
agency's dismissal of claims (1) through (3) for untimely EEO contact,
and reversed its dismissal of (4) and (5) and remanded (4) and (5) to
the agency for further administrative processing. The agency conducted
an investigation for (4) and (5).
During the agency investigation, complainant stated that she was on an
approved medical leave of absence for a year and, during said period; she
was in a car accident. She stated that, on November 18, 2004, she sent S1
correspondence with medical documentation indicating that her physician
released her to return to work on December 3, 2004. Complainant stated
that, in a December 1 letter, S1 denied her return to work and informed
her that she had to submit medical documentation in narrative form for
the length of her absence and on her physician's letterhead beforehand.
Complainant expressed concern regarding S1's instructions stating that
she provided medical documentation throughout her absence and that S1
delayed informing her of the requirement and thereby prevented her from
returning to work on December 3. Complainant stated that, on December
10, she mailed the required medical documentation to S1, but S1 denied
her return consistently and did not allow her to return to work until
January 12, 2005. Further, complainant stated that her absence on March
15 and 16 should have been considered "scheduled" because she provided
S1 medical documentation on March 14.
Also during the agency investigation, regarding (4), S1 stated that he
completed a pay adjustment, had complainant sign it, and then submitted
the adjustment for processing to the agency's payroll department in
Sioux Falls, SD. S1 stated that his adjustment was based on a March
2005 grievance resolution1 and that he did not control processing once
submitted to payroll. Regarding (5), S1 stated that complainant's leave
was approved following her return and charged as unscheduled personal
leave in lieu of sick leave. He explained that "scheduled" sick leave
requires proper documentation prior to the absence.
Following the agency investigation, the agency informed complainant
of her right to request a hearing before an EEOC Administrative Judge
or an immediate final agency decision. Complainant elected the former.
At the hearing stage, a complaint that complainant filed on July 11, 2005
(agency number 1H-328-0018-05), was consolidated with 1H-328-0011-05.
In the July complaint (1H-328-0018-05), complainant alleged that the
agency discriminated against her based on race, disability and reprisal
for prior EEO activity when (6) on May 4, 2005, an agency supervisor (S2)
required her to show her a disabled parking placard and move her car from
a reserved parking space for the disabled, and then charged her .22 units
of leave without pay to do so and (7) on May 17, 2005, S2 used the last
four digits of complainant's social security number on an investigative
interview form. Complainant subsequently withdrew her hearing request.
In a partial acceptance/dismissal letter dated July 21, 2005, the
agency accepted (6) for investigation and dismissed (7) pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. During the agency
investigation for (6), S2 stated that she instructed complainant to
move her vehicle because she parked in the spot reserved for an agency
employee who has one leg and is bound to a wheelchair. S2 stated that
she does not have any detailed medical information beyond that on the
other employee or complainant. Further, S2 stated that employees are
placed "off the clock" if they are asked to move their vehicles.
On May 16, 2006, the agency issued a final decision reiterating its
dismissal of (7) and finding no discrimination as to (4), (5) and (6).
Specifically, the agency stated that complainant failed to show that
she is substantially limited in a major life activity as her physician
released her to full duty with no restrictions or notation of limitations,
and that complainant failed to show a nexus between her protected bases
and the adverse actions alleged in (4) through (6). The instant appeal
from complainant followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker," and that the EEOC "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of the
law.")
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its conduct.
See U. S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In the instant matter, we find that complainant failed to present evidence
that the agency's actions were motivated by discriminatory animus toward
her protected classes.2 We find that complainant failed to show pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
procedural dismissal of (7) and its finding of no discrimination for (4),
(5) and (6).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z1008)
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
January 9, 2009
__________________
Date
1 We note that the record contains a grievance settlement dated March 14,
2005, indicating that the agency would pay complainant for administrative
leave (in lieu of charging leave without pay) between December 10, 2004
and January 11, 2005; except December 22, unless complainant provided
appropriate proof of jury duty service. In addition, the agreement
stated that the agency would reimburse complainant appropriate annual and
sick leave. The record also contains a Pay, Leave or Other Adjustment
Request signed by complainant and S1, dated April 19, 2005. The record
shows there was further correspondence internally and with complainant,
and the agency paid complainant on September 8, 2005.
2 For the purpose of this decision, we assume without finding that
complainant is an individual with a disability. See 29 C.F.R. �
1630.2(g)(1).
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0120064223
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064223