Diane Kirkman, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service Agency.

Equal Employment Opportunity CommissionFeb 29, 2000
01974574 (E.E.O.C. Feb. 29, 2000)

01974574

02-29-2000

Diane Kirkman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service Agency.


Diane Kirkman v. United States Postal Service

01974574

February 29, 2000

Diane Kirkman, )

Complainant, )

)

v. ) Appeal No. 01974574

) Agency No. 1C-441-1222-96

William J. Henderson, )

Postmaster General, )

United States Postal Service )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission) from the final decision of the agency concerning

her allegation that the agency discriminated against her in violation of

the Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq; the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> This appeal is

accepted by the Commission in accordance with 64 Fed. Reg. 37,644, 37,

659 (1999)(to be codified at 29 C.F.R. � 1614.405.

ISSUE PRESENTED

The issue presented is whether complainant has established, by a

preponderance of the evidence, that the agency discriminated against

her on the bases of race (Black), sex (female), age (10/10/53), physical

disability (carpal tunnel syndrome, bilateral shoulder and neck pain),

mental disability (stress), and reprisal (prior EEO activity) when:

(1) on May 25, 1996, she was harassed by her Supervisor when told she

needed to report to a supervisor when leaving her work station area to

take breaks and lunches; and

(2) on June 7, 1996, when complainant received a seven-day suspension for

failure to follow instructions, unauthorized absences from assignment,

and conduct unbecoming a postal employee because of the incident cited

in allegation (1).<2>

BACKGROUND

In a formal complaint dated August 18, 1996, complainant alleged that

the agency discriminated against her as referenced above. The agency

accepted complainant's complaint and conducted an investigation. At the

conclusion of the investigation the agency notified complainant of her

right to request a hearing before an EEOC administrative judge (AJ), or a

final decision by the agency without a hearing. Prior to the pre-hearing

conference with an AJ, complainant withdraw her initial request for

a hearing and requested a final agency decision (FAD). Thereafter,

on April 16, 1997, the agency issued a FAD finding no discrimination.

It is from this decision that complainant now appeals.

On appeal, complainant continues to make arguments with regard to

the issue of whether she was required to work outside of her medical

restrictions. However, as previously noted, that issue is not presently

before us. This decision focuses solely on whether complainant was

harassed when she was told she needed to report to a Supervisor when

leaving her work station area to take breaks and lunches, and subsequently

issued a seven-day suspension for the reasons referenced above.

At the time of this complaint, complainant was performing a temporary

limited-duty job as a Distribution Clerk, PS-6, after having been

absent from her duties due to the occupational illness of carpal

tunnel syndrome from 1988 to 1995. During this time period complainant

received compensation from the Office of Workers Compensation Programs

(OWCP). Complainant testified that in January 1996, her doctor added

the medical restriction that she be given a fifteen minute break every

hour to her limited-duty position. Complainant's medical restrictions

are supported by the record.

Complainant testified that on May 23, 1996, she was instructed by her

Supervisor that she had to inform a Supervisor when she was going to

take a break or go to lunch. Furthermore, complainant stated that

she informed and showed her Supervisor medical documentation from her

doctor describing the medical restriction that she be required to take

a fifteen minute break every hour.

Complainant testified that on May 25, 1996, she was told to sweep the mail

even though her Supervisor was aware of her medical limitations. After

the Supervisor left the unit, complainant testified that she also left

the unit for a few minutes, then came back in order to head for lunch.

Upon the Supervisor's return, complainant was informed that she did not

report her break. Complainant stated that she did not take a break.

Complainant further testified that because of this "harassment" she

required the assistance of a union steward.

Unaware that a supervisor was present in the unit, complainant went the

union office without notifying her Supervisor during her next break.

Complainant believed that a call was placed from the union office to her

unit informing her superiors of her whereabouts. However, upon her return

to her assignment, she was told that she did not have permission to go

to the union office. Fifteen minutes later, she testified that she was

presented with a slip to go to the union office for fifteen minutes.

Complainant told the union steward she only had fifteen minutes to

conduct business. The union steward told complainant that what they had

to discuss would take longer and that he would notify her Supervisor.

Upon her return to the unit, complainant was informed by her Supervisor

that she took longer than fifteen minutes. Complainant testified that

she was under the assumption that the union steward had cleared the

time for her to take longer. On June 7, 1996, complainant was issued

a seven-day suspension for failure to follow instructions, unauthorized

absences from assignment, and conduct unbecoming a postal employee.

Complainant's Supervisor testified that complainant was issued the

suspension for just cause. She testified that complainant was given the

same instructions as all of the other limited-duty employees in the unit.

However, the Supervisor testified, rather than follow the instructions

complainant left her assignment without permission. The Supervisor

testified that the disciplinary action was progressive in light of

complainant's past disciplinary action in the previous five months.

ANALYSIS AND FINDINGS

Disparate Treatment

We will assume for purposes of this analysis that complainant is an

individual with a physical disability as defined by the Rehabilitation

Act. Complainant's allegations of discrimination based on race, sex,

age, and disability constitute claims of disparate treatment which are

properly analyzed under the three-tier order and allocation of proof

as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

Prewitt v. United States Postal Service, 662 F.2d 292, 305 n. 19 (5th

Cir. 1981). In addition, in order to prevail on her age discrimination

claim, complainant bears the burden of persuasion to show that age was

a determinative factor in the agency's decision. See Loeb v. Textron,

Inc., 600 F.2d 1003 (1st Cir. 1979).

However, the McDonnell Douglas analytical paradigm need not be adhered

to in all cases. In appropriate circumstances, when the agency has

articulated legitimate, nondiscriminatory reasons for its conduct, the

trier of fact may dispense with the prima facie inquiry and proceed to

the ultimate stage of the analysis, i.e., whether the complainant has

proven by preponderant evidence that the agency's explanations were a

pretext for discrimination. See United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Shapiro v. Social

Security Administration, EEOC Request No. 05960403 (December 6,

1996). Since the agency has articulated a legitimate, nondiscriminatory

reason for its decision, the Commission will consider whether the agency's

explanation for its decision was a pretext for discrimination.

The Supervisor testified that all limited-duty employees were given

the same instructions with regard to informing a Supervisor when one

was going to take a break or go to lunch. Complainant's comparatives

were not under the named Supervisor's management control and therefore,

not similarly-situated. Complainant's assertions that she was harassed

or issued the suspension based on any of the bases alleged is not

supported by the record. The record fails to establish that the agency's

motivation for its actions was based on anything but her failure to

follow instructions. In addition, complainant failed to show that the

agency's reason for its action was a pretext for discrimination.

Reprisal

In order to establish a prima facie case of reprisal, a complainant must

show: (1) that she engaged in protected activity, e.g., participated in

a Title VII proceeding; (2) that the alleged discriminating official

was aware of the protected activity; (3) that she was disadvantaged

by an action of the agency contemporaneously with or subsequent to

such participation; and (4) that there is a causal connection between

the protected activity and the adverse employment action. Hochstadt

v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318

(D. Mass.), aff'd 545 F.2d 222 (1st Cir. 1976); see also Mitchell

v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985); Burrus v. United Telephone

Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982), cert. denied,

459 U.S. 1071 (1982). Assuming complainant established a prima facie

case of reprisal, she failed to show that the agency's reasons for its

actions, as set forth above, were reprisal for her protected activity.

CONCLUSION

Accordingly, it is the decision of the EEOC to AFFIRM the agency's final

decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

February 29, 2000

DATE Carlton M. Hadden,

Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

Equal Employment Assistant

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 We note that complainant raised a new allegation concerning

whether on May 26, 1996, she was instructed to work outside of her

medical limitations after the issues referenced above were accepted

for investigation. Complainant's reasonable accommodation allegation

was not originally raised with an EEO counselor; therefore, it was

not addressed in the FAD, nor will it be addressed in this decision.

However, complainant may contact a counselor for appropriate counseling

in accordance with 29 C.F.R. � 1614.105. Since the agency noted that

complainant first raised the issue during the investigation, the date of

the EEO Counselor contact shall be the date the agency stated complainant

raised the issue, October 16, 1996.