0120082570
08-05-2008
Jacqueline Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jacqueline Thomas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082570
Agency No. 4C440015607
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 25, 2008, dismissing her complaint of unlawful
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.
BACKGROUND
The instant appeal is from a final agency decision (FAD) finding no
discrimination based on race, disability (perceived as), and retaliation.
The record indicates that complainant filed her formal complaint on May
20, 2008, alleging that she was subjected to discrimination on the bases
of race (African-American), disability (regarded as), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when:
(1) she received a Continuous Absence Letter("Absence Letter"), dated
February 21, 2007; and
(2) she was denied a position as a career mail carrier for twelve
years.
On June 7, 2007, the agency issued a "Partial Acceptance/Partial Dismissal
of Formal EEO Complaint." Therein, the agency determined that the instant
formal complaint was only comprised of claim (1). Claim (2) was dismissed
for failure to state a claim because the agency found that complainant
was "attempting to resurrect the issue of not being accommodated ...that
was filed and investigated in EEO [] Appeal No. 01A52773." Complainant
attempted to amend her complaint to include claim (2) but the amendment
was denied. Consequently, only claim (1) was investigated.
On February 19, 2008, an Administrative Judge (AJ) summarily dismissed
complainant's hearing request and ordered the agency to produce a FAD
because complainant failed to provide an affidavit in support of her
complaint despite numerous requests during the investigation period.
In its FAD the agency found that complainant failed to prove she was
subjected to discrimination in the issuance of the Absence Letter.
The agency also affirmed the partial dismissal of claim (2) for failure
to state a claim.
ANALYSIS AND FINDINGS
Initially, we note that claim (2) was properly dismissed for failure to
state a claim. The Commission shall not entertain complainant's attempt
to relitigate the same claim that was decided by the agency in Jacqueline
Thomas v. United States Postal Service, EEOC Appeal No. 0120052773 (July
25, 2006), request to reconsider denied, Request No. 0520061008. See 29
C.F.R. � 1614.107(a)(1) (requiring dismissal of a complaint stating the
same claim that has been decided by the agency).
On appeal, the agency argues that complainant's appeal is untimely because
it was filed 51 days after the March 25, 2008 FAD date. The agency
allowed five days for mailing of the FAD and determined that complainant
received the FAD by March 31, 2008 (the fifth day, March 30, 2008,
was a Sunday.) The FAD included a delivery confirmation number for the
U.S. Postal Service "Track and Confirm" computerized tracking system.
The regulation set forth at 29 C.F.R. � 1614.402(a) states, in pertinent
part, that an appeal must be filed within 30 days of receipt of the FAD.
Because the record contains insufficient evidence reflecting complainant's
receipt of the FAD, the Commission concludes that complainant's appeal
was timely. The Commission has held that United States Postal Service
"Track & Confirm" print-outs, which indicate delivery dates for zip codes
only, are not specific enough to determine whether complainant received
the package. Consequently, we determine that there is no evidence,
other than a generalized reference to a city and zip code, indicating
that complainant actually received the FAD. The Commission finds that
complainant filed her timely appeal on May 15, 2008, as evidenced by
the postmark on the envelope containing her appeal.
To prevail in a disparate treatment race 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 United
States 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 Department 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 analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) she is an "individual with a disability"; (2)
she is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding the
adverse action give rise to an inference of discrimination. Lawson v. CSX
Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production
then shifts to the agency to articulate a legitimate, non-discriminatory
reason for the adverse employment action. As with the disparate treatment
analysis, the prima facie inquiry may be dispensed with in this case,
since the agency has articulated legitimate and nondiscriminatory reasons
for its conduct. Once again, in order to satisfy her burden of proof
and prevail with her disability claim, complainant must demonstrate by
a preponderance of the evidence that the agency's proffered reason is
a pretext for disability discrimination. Id.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) he or she engaged in a protected
activity; (2) the agency was aware of the protected activity; (3)
subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000). Because the agency articulated a
legitimate and nondiscriminatory reason for its conduct, we will dispense
with the reprisal prima facie inquiry. To satisfy her burden of proof
and prevail with her reprisal claim, complainant must demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination.
After a thorough review of the record, as well as the arguments submitted
by the parties on appeal, we first find that the agency's finding of
no discrimination for claim (1) was correct and we affirm the FAD.
Complainant failed to establish that the agency's proffered reason for
issuing the Absence Letter, because complainant had not worked her
assignment since August of 1995, was a pretext for discrimination.
We note that complainant failed to provide an affidavit during the
investigation, thereby forgoing her opportunity to prove the agency's
reason was pretext for race, reprisal and disability discrimination.
Complainant's choice not to address these issues on appeal leads the
Commission to accept the agency's non-discriminatory reason for issuing
the Absence Letter. Accordingly, we AFFIRM the agency's finding of
no discrimination for complainant's race, retaliation, and disability
claims.
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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 5, 2008
Date
2
0120082570
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082570