01A21561
02-18-2003
Kimberly A. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kimberly A. Brown v. United States Postal Service
01A21561
February 18, 2003
.
Kimberly A. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21561
Agency No. 1-J-603-0025-01
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Mail Processor, Level 4, at the agency's South Suburban Processing
& Distribution Center, in Bedford Park, IL. Complainant sought EEO
counseling and subsequently filed a formal complaint on February 12,
2001, alleging that she was discriminated against on the bases of race
(African-American), sex (female), and disability (degenerative disk) when:
(1) On September 13, 2000, complainant's supervisor shoved a tray at her,
and denied her union representation.
On September 14, 2000, complainant's supervisor took her chair, sent
complainant out of the unit, and then refused to give her assistance.
On January 19, 2001, complainant's request for Family Medical Leave
was recorded as Absent Without Leave (AWOL).
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant did not establish that
she was a qualified individual with a disability and failed to establish
a prima facie case of race and sex discrimination. The agency, assuming
arguendo, that complainant had met her burden, found that the agency
articulated legitimate, nondiscriminatory reasons for its actions,
and complainant did not establish pretext.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she is disabled and that her limited
duty offer required that assistance be given to her upon request,
and that the supervisor failed to assist her when asked. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
In analyzing a disparate treatment claim under Title VII and the
Rehabilitation Act, where the agency denies that its decisions were
motivated by complainant's race, sex or 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), and
its progeny. After establishing a prima facie case of discrimination,
the burden of production shifts to the agency to articulate a legitimate,
non- discriminatory reason for the adverse employment action. In order
to satisfy her burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reasons were
a pretext for disability discrimination. Id.
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of race, sex, and disability
discrimination. We now consider whether the agency articulated
legitimate, nondiscriminatory reasons for its actions. Concerning issues
(1) and (2), complainant's supervisor (S1) denied the allegations,
and stated that while complainant was sitting at one of the desks in
the unit, he picked up a tray of mail and placed it on the desk by her
and instructed complainant to complete that tray first. S1 further
stated that at no time did he shove a tray of mail at complainant.
S1 also stated that about one hour later, complainant asked to see
a union steward and that he approved the request before the end of
the two hour period required by local collective bargaining agreement.
In his affidavit, S1 described that in the unit there were four machines
with a chair, and a desk at each machine. S1 stated that he had asked
complainant to move from the desk that had all of his paperwork on it
to one of the other three vacant desks. S1 states that he did not take
complainant's chair and he did not send her out of the unit. S1 further
states that he never told complainant to get the mail herself and that
she was given assistance when needed.
Concerning issue (3), the supervisor distribution operations (S2)
testified that complainant was not discriminated against when she was
not given her attendance form back in a timely manner. S2 testified
that every effort is made to return an employee's forms in a timely
manner and that a two or three day delay does not have an adverse
effect on the employee getting paid. The record reflects that although
complainant's form was originally disapproved pending documentation,
it was subsequently approved.
These are legitimate, nondiscriminatory reasons for the agency's actions.
Therefore, the burden returns to complainant to demonstrate that the
agency's reasons were a pretext for discrimination, that is, that the
agency's reasons were not true and that the agency was more likely
motivated by discriminatory reasons. Complainant has not provided
sufficient evidence that would persuade us that the agency's reasons for
its actions were a pretext for discrimination. Complainant has not met
her burden in this regard. The Commission finds that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination, or that any
agency official harbored a discriminatory animus towards her.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
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
February 18, 2003
Date