0120110621
09-14-2012
Krystal L. Denson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Krystal L. Denson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120110621
Agency No. 4F-945-0007-10
DECISION
On October 27, 2010, Complainant filed an appeal from the Agency's July 30, 2010 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the record is adequately developed to allow the Commission to determine if the Agency discriminated against Complainant on the basis of disability (physical).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part Time Flexible (PTF) City Carrier at the Agency's Walnut Creek Post Office in California. The position description states that a City Carrier "[d]elivers and collects mail on foot or by vehicle."
In January 2008, Complainant returned to work after taking time off for medical reasons. Medical documentation dated June 22, 2009 indicated that Complainant's only restriction was "NO DRIVING" and that Complainant could "deliver her route (on foot) without supervision."
According to Complainant, for an unspecified time between January 2008 and September 11, 2009, management assigned her work that did not require her to drive. For example, Complainant averred that management placed her in the office to case mail and pull down/set up routes. In addition, Complainant averred that management drove her to a route, dropped her off to deliver the route, and picked her up afterwards. Further, Complainant averred that management paired her up with another employee on light duty who could drive and they would deliver a route together. Moreover, Complainant averred that management gave her a walkout route. Finally, Complainant averred that management had her deliver mail to nearby businesses.
On January 19, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (physical) when, after September 11, 2009, management denied her work and told her that there was no work available for her. In her formal complaint, Complainant described the work she had been doing and asserted that "[a]ll of this changed" after September 11, 2009. Time and Attendance Collection System (TACS) Reports reflect that, from September 12, 2009 to April 9, 2010, Complainant worked only 10 out of the 30 weeks and approximately 15 hours a week. In contrast, the 16 other PTFs at the facility worked an average of 29 out of the 30 weeks and an average of approximately 34 hours each week.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency discriminated against her as alleged. Among other things, the decision found that Complainant failed to establish that the legitimate, nondiscriminatory reasons articulated by management were a pretext for disability discrimination. In so finding, the decision cited testimony by the Postmaster (PM) and the Acting Manager (AM) that they placed Complainant on the work schedule when there was work available in the office to case mail, but could not place her on the work schedule when the only work for PTFs involved driving a vehicle to deliver or collect mail. In addition, the decision cited testimony by PM and AM that the decline in mail volume affected the PTFs' hours.
CONTENTIONS ON APPEAL
On appeal, Complainant asserted that she was able to perform all the duties of her position except for driving and described some of the work she was doing prior to September 11, 2009. In addition, Complainant highlighted the difference in the amount of time that she was scheduled to work after September 11, 2009 compared to the amount of time that the other PTFs were scheduled to work.
In response, the Agency argued that Complainant's October 27, 2010 appeal was untimely because its final decision was delivered to her address of record on August 4, 2010. In addition, the Agency summarized its final decision and requested that we affirm it.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Timeliness of Complainant's Appeal
29 C.F.R. � 1614.402(a) provides, in pertinent part, that an appeal must be filed within 30 days of receipt of the agency's final decision. Here, we find that the record contains insufficient evidence reflecting Complainant's receipt of the Agency's final decision on August 4, 2010. The record includes an Agency "Track/Confirm" printout, which indicates a delivery on August 4, 2010 in "Antioch, CA 94509," without further details of the address. We determine that there is no evidence, other than this generalized reference to a city, state, and zip code, that Complainant actually received the final decision on the date alleged by the Agency. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992)). As Complainant did not indicate on appeal when she received the final decision and there is insufficient evidence that she received the final decision on August 4, 2010, we find her October 27, 2010 appeal to be timely.
Adequacy of the Record
An agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id.
Upon review, we find the record to be insufficiently developed for us to determine if the Agency discriminated against Complainant on the basis of disability. Specifically, we find that the record contains inadequate testimonial and documentary evidence regarding: (1) what work Complainant did, within her medical restrictions, before September 11, 2009; (2) why such work was not available to Complainant after September 11, 2009; and (3) what work other PTFs did after September 11, 2009.
As noted above, Complainant testified that management assigned her the following work within her medical restrictions (no driving): casing mail in the office; pulling down and setting up routes; delivering a route after management dropped her off; delivering a route with another light duty employee who could drive; delivering a walkout route; and delivering mail to nearby businesses. The record, however, contains no testimonial evidence from management to either corroborate or refute Complainant's assertions about the work she did before September 11, 2009. In addition, the record contains no documentary evidence showing what work Complainant did before September 11, 2009. Further, the record contains no testimonial evidence from management as to why Complainant could not continue doing those previous tasks after September 11, 2009. Finally, the record contains no documentary evidence to either corroborate or refute management's testimony that all the work performed by the other PTFs after September 11, 2009 involved driving to deliver/collect mail and did not involve casing mail. Absent from the record is any contemporaneous documentation (PTF schedules posted weekly, written communications between PM and AM about the workload and PTF schedules, lists of assignments and routes, etc.)1 showing what work the other PTFs did.2
As Complainant alleged that management discriminatorily denied her work after September 11, 2009 and management articulated that no work was available within Complainant's medical restrictions, we find that any information about the nature of the work done by Complainant and the other PTFs during that time would be evidence that is material to the complaint and relevant to the issue raised in the complaint.
Based on the above, we conclude that the present record lacks the necessary information upon which to adequately determine if the Agency's actions were discriminatory. Accordingly, we remand this case back to the Agency to conduct a supplemental investigation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND Complainant's complaint in accordance with the Order below.
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall conduct a supplemental investigation to develop an adequate factual record regarding Complainant's complaint. The Agency shall obtain all pertinent evidence to address the complaint including, but not limited to:
a. Any PTF schedules, written communications between management officials, lists of assignments/routes, or other contemporaneous documentation showing what work Complainant did before September 11, 2009;
b. Any PTF schedules, written communications between management officials, lists of assignments/routes, or other contemporaneous documentation showing what work the other PTFs did after September 11, 2009;
c. Sworn affidavits from PM and AM explaining in detail:
i. What work Complainant did before September 11, 2009, specifically addressing Complainant's testimony that she: cased mail in the office; pulled down and set up routes; delivered a route after management dropped her off; delivered a route with another light duty employee who could drive; delivered a walkout route; delivered mail to nearby businesses; and
ii. Why Complainant could not continue doing the same work after September 11, 2009.
d. A rebuttal statement from Complainant after she has had an opportunity to review the requested documents and the sworn affidavits.
2. The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
___9/14/12_______________
Date
1 PM testified that AM prepares a weekly schedule for the PTFs and that the two of them discuss the workload and schedule.
2 Although the record contains the TACS Reports for Complainant and the other PTFs from September 12, 2009 to April 9, 2010, we note that those reports only indicate the hours that the employees worked and not what they did.
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0120110621
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110621