01a54864
11-10-2005
Jadwiga Luszczynski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Jadwiga Luszczynski v. United States Postal Service
01A54864
11-10-05
.
Jadwiga Luszczynski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 01A54864
Agency No. 1C-181-0002-04
Hearing No. 170-2005-00170X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq., Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621
et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a former Casual Clerk at the agency's
Lehigh Valley Processing and Distribution Center, in Lehigh Pennsylvania,
filed a formal EEO complaint on February 23, 2004, alleging that the
agency discriminated against her on the bases of her sex, disability
(Attention Deficit Disorder), and age (D.O.B. July 31, 1957) when on
November 19, 2003, she was not recommended for a casual appointment.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination because complainant failed to proffer any
evidence to establish that she was substantially limited in a major life
activity as a result of her Attention Deficit Disorder (ADD). The AJ
found that even though complainant was diagnosed with ADD, complainant
failed to establish that this impairment affected a major life activity.
The AJ noted that complainant's physician stated that complainant is not
affected by her impairment. The AJ also found that even if complainant
established that her impairment effected a major life activity, she
failed to demonstrate that the agency knew of her impairment or that
she was treated differently because of her impairment. With regard to
complainant's claim of sex and age discrimination, the AJ found that
complainant established a prima facie case of discrimination. The AJ
found that even assuming that complainant established a prima facie
case of age, sex, or disability discrimination, the agency proffered
legitimate, nondiscriminatory reasons for not recommending complainant
for the position. The Manager, Distribution Operations (MDO), provided
that he did not select complainant based on recommendations from the
floor supervisors. The MDO stated in his affidavit that the floor
supervisors provided that complainant had problems with performance,
both in quality and quantity in work. As such, the AJ concluded that even
taking the facts in the light most favorable to complainant, she failed to
establish that a genuine issue of material fact existed and, therefore,
no discrimination occurred. The agency's final order implemented the
AJ's decision.
On appeal, complainant contends that the AJ erred because she failed to
take into account two e-mails that show that the MDO knew of complainant's
ADD. In response, the agency restates the position it took in its FAD,
and requests that we affirm its final order.
As a preliminary matter, we note that on appeal, we review the FAD
issued without a hearing de novo. 29 C.F.R. � 1614.405(a). 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 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).
We find that complainant failed to proffer sufficient evidence to
established that a genuine issue of material fact exists such that
a hearing on the merits is warranted. Even assuming arguendo that
complainant established a prima facie case of age, sex or disability
discrimination, we find that the agency articulated a legitimate,
nondiscriminatory reason for not recommending her for the casual position.
Specifically, according to the MDO's affidavit testimony, he did not
recommend that complainant be rehired as a result of the comments from the
floor supervisors. Complainant was not recommended because the quantity
and quality of complainant's work was not considered to be satisfactory.
MDO's Affidavit. �She had a habit of becoming easily distracted and
losing focus, which resulted in mistakes being made during the prepping
of mail.� Id. �The operations the casuals were required to work were
of a more complex nature than the work [complainant] was accustomed
to.� Id. �[Complainant] was prone to lapses in concentration and loss
of focus.� Id. Complainant alleges that there were e-mails from the
MDO stating that complainant was not recommended because she was not
focused, and, therefore, demonstrates that he knew of her impairment.
There is, however, no evidence of these e-mails in the record. To the
extent that complainant argues that these statements reflect that the MDO
knew of her disability, the record reflects that the MDO stated in his
affidavit that he did not have any knowledge of complainant's impairment.
Additionally, there is no evidence in the record that the MDO regarded
complainant as disabled � in fact, complainant stated that the MDO had
encouraged her to apply for the position. Since complainant has failed
to proffer any evidence to support these contentions, we find that
complainant failed to raise a genuine issue of fact as to whether the
MDO discriminated against her based on her disability. Additionally,
we conclude that complainant has failed to offer any other evidence to
rebut or otherwise establish that the MDO's legitimate, nondiscriminatory
reason was a pretext for age or sex discrimination.
Therefore, after a careful review of the record, the Commission finds
that the AJ appropriately issued a decision without a hearing, as no
genuine dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Further, construing the evidence to
be most favorable to complainant, we note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____11-10-05______________
Date