01a54642
12-08-2005
Kelly A. Valadez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kelly A. Valadez v. United States Postal Service
01A54642
12-08-05
.
Kelly A. Valadez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54642
Agency No. 4E-980-0124-02
Hearing No. 370-2005-0059x
DECISION
On June 22, 2005, Kelly A. Valadez (complainant) filed an appeal from
the May 26, 2005, final decision of the United States Postal Service
(agency) concerning her complaint of unlawful employment discrimination in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,
the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her based on disability (pneumonitis, asthma) and in reprisal for prior
EEO activity when she was terminated during her probationary period,
not given evaluations, and forced to work when ill. Following a hearing,
the Administrative Judge (AJ) found that the agency did not discriminate
against complainant.
Complainant was re-hired on April 20, 2002, pursuant to a settlement
agreement (SA) in January 2002; the agency agreed to reinstate her at a
different facility with a 90-day probationary period. Approximately one
month later, in the last week of May 2002, she told her supervisors
that she was ill but continued working and left later in the day.
She never returned to work, and the agency terminated her on June 22,
2002, for unsatisfactory attendance, unsatisfactory personal conduct,
unsatisfactory work relations, and safety violations.
The AJ found that, even though complainant was eventually diagnosed with
respiratory illness and did not fully recover until August 2002, as of
June 22, 2002, the date of her termination, all indications were that
complainant was not an individual with a disability and had a short-term,
albeit severe, impairment. The AJ found that complainant was not entitled
to a reasonable accommodation, since she was not an individual with a
disability, and she had never requested one. Further, the AJ stated that,
even if complainant were entitled to coverage under the Rehabilitation
Act, the agency articulated a legitimate, nondiscriminatory reason for
her termination, in that, she was absent for a lengthy period, had not
requested leave of any kind, and did not inform the agency when or that
she would return.<1> With regard to her claim of reprisal, the AJ found
that none of the three supervisors were aware of her prior EEO activity,
which took place during her previous tenure. As to the evaluations,
the agency stated she was not present to prepare them, and the AJ found
that they were not necessary because of the eventual termination. The AJ
rejected her claim that the agency did not engage her in the interactive
process, in that, she was not entitled to a reasonable accommodation.
On appeal, complainant argued that the AJ applied disability law
incorrectly to the instant matter, contending that she had a disability
and that the agency, which should have known of her disability because
of her doctors' reports, had an affirmative obligation to initiate the
reasonable accommodation process; she does not explain or suggest what
accommodation she sought. Further, with regard to the AJ's reprisal
analysis, complainant averred, without explication, that she raised an
inference of reprisal, in that, from the beginning, her supervisors �set
her up to fail.�
Reprisal Claim
Complainant can establish a prima facie case by presenting facts that,
if unexplained, reasonably give rise to an inference of retaliation.
Shapiro v. Social Security Administration, EEOC Request No. 05960403
(December 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, supra, and 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) s/he engaged in a protected activity; (2) the agency was aware of
his/her protected activity; (3) subsequently, s/he was subjected to
adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse action. Whitmire v. Department of
the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Here, while complainant met the first element, she did not provide
evidence that her supervisors were aware of her prior EEO activity or
that there was a causal connection between her prior activity and her
termination. Two of the three supervisors<2> provided affidavits to
the record and testified that they were unaware of complainant's prior
EEO activity, not having had contact with complainant previously or
with regard to her prior activity. Further, she did not show a causal
connection between her prior EEO, which arose at a different facility
and resulted in an agreement, the process of which is confidential.
Disability Claim
For claims based on disability, as a threshold matter, a complainant
claiming that s/he is an individual with a disability within the meaning
of the Rehabilitation Act and the Commission's regulations, must show
that s/he has, has a record of having, or is regarded as having an
impairment that substantially limits one or more major life activities.
29 C.F.R. �1614.203(a)(1)(i). Major life activities include caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. �1614.203(a)(3). Once a
complainant establishes that s/he is an individual with a disability,
the next consideration is whether s/he is a qualified individual with a
disability as defined in 29 C.F.R. � 1630.2(m). A "qualified individual
with a disability" is a disabled individual who satisfies the requisite
skill, experience, education, and other job-related requirements of
the position and can perform the essential functions of the position,
with or without reasonable accommodation. Id. For purposes of further
analysis, we assume, arguendo, without finding, that complainant was
an individual with a disability under the Commission's regulations.<3>
29 C.F.R. � 1630.2(g)(1).
Although complainant defined her complainant as denial of reasonable
accommodation, there is nothing in the record to indicate that she
requested an accommodation nor did she identify what accommodation the
agency failed to provide her. Instead, we find that complainant stated
a claim of disparate treatment. Disparate treatment claims are examined
under a tripartite analysis whereby a complainant must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973);
see Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has articulated its reason(s),
and if reasonable and nondiscriminatory, the ultimate burden reverts
to the complainant to demonstrate by a preponderance of the evidence
that the agency's reasons were a pretext, or sham, for discrimination.
At all times, complainant retains the final burden of persuasion to
demonstrate by a preponderance of the evidence that the agency acted on
the basis of a prohibited reason.<4> St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983).
Analysis of Claims
In the instant matter, we find that the agency offered legitimate,
nondiscriminatory reasons for its decision to terminate complainant.
The agency, through her supervisors, explained that her attendance was
unsatisfactory, in that, she received nine days of training, worked
for 13 days, and was absent 13 days; that her personal conduct was
unsatisfactory, i.e., she was rude, disrespectful, and uncooperative,
yelling at them on the workroom floor and hanging up on them; that her
work conduct and behavior was unsatisfactory; and that she violated the
agency's safety regulations.
In the McDonnell Douglas scheme, once the agency articulated legitimate,
nondiscriminatory reasons for its actions, the ultimate burden of
persuasion returns to the complainant to demonstrate by preponderant
evidence that the reasons given by the agency for its actions are
pretextual or a sham or disguise for discrimination. The complainant
must show that the agency's action was more likely than not motivated
by discrimination, that is, that the action was influenced by legally
impermissible criteria, i.e., complainant's medical condition and in
reprisal for prior EEO activity. Absent a showing that the agency's
articulated reason was used as a tool to discriminate against her,
complainant cannot prevail.
Even assuming that complainant established a prima facie case of
disability and reprisal discrimination, we find that she failed to
demonstrate that the agency's articulated reasons for its action were
not true or based on discriminatory considerations. We find therefore
that the agency did not discriminate against complainant on any bases.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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
____12-08-05______________
Date
1During her absence, complainant provided the agency with five notes
which indicated generally that she was receiving medical care for
a respiratory illness. Three notes suggested she would return on a
certain date, but she did not return. The notes indicated a one-word
diagnosis, i.e., asthma and/or bronchitis; The first note (May 25) stated
she would return on May 29, and that she had bronchitis; the second
(May 28) that she would be absent for one week; the third (May 31)
stated she would be re-evaluated on June 3; the fourth noted (June 3)
stated she had asthma and would return on June 17; and the last note
(June 17) stated she had asthma and would be evaluated on June 24, 2002.
2One supervisor was not available during the investigation.
3We note that relatively brief and transitory illnesses or injuries
that have no permanent or long-term effects on a major life activity
are not substantially limiting and, therefore, do not rise to the level
of a disability. See EEOC Compliance Manual, Definition of the Term
"Disability," � 902.4(d).
4The complainant must show that the agency's action was more likely
than not motivated by discrimination, that is, that the action was
influenced by legally impermissible criteria, i.e., her disability.
Absent a showing that the agency's articulated reason was used as a tool
to discriminate against her, complainant cannot prevail.