0120113991
02-28-2013
Luewanda J. Young, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Luewanda J. Young,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120113991
Hearing No. 490-2011-00202X
Agency No. 1H-374-0056-10
DECISION
On August 26, 2011, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 3, 2011, concerning the portion of her equal employment opportunity (EEO) complaint alleging 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant encumbered the position of Time & Attendance Clerk at the Agency's Memphis Network Distribution Center (NDC) in Memphis, Tennessee.
On October 5, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her race (Black), sex (female), and disability when it notified her in writing on July 28, 2010, that effective July 31, 2010, she was reassigned from Tour 2 (4:30 AM to 1 PM) to Tour 3 (2 PM to 10:30 PM).
The Agency split off Complainant's disability claim and assigned it complaint number 1H-374-0034-10. It notified Complainant that her disability claim was being held in abeyance under (because it was within the scope of) McConnell et al. v. United States Postal Service (a class action case). It accepted Complainant's race and sex claims for investigation.
Prior to Complainant requesting a hearing before an EEOC Administrative Judge (AJ), the Agency dismissed her race and sex claims, finding that she failed to cooperate because she did not provide an investigative affidavit. 29 C.F.R. � 1614.107(a)(7).
In Young v. United States Postal Service (Southeast Area), EEOC Appeal No. 0120111793 (June 17, 2011), the EEOC found that the Agency correctly subsumed Complainant's disability claim into the McConnell class action. The EEOC reversed the Agency's dismissal of Complainant's race and sex claims, reasoning that the record did not show she was contumacious and there was sufficient information in the record to allow further processing, noting the investigation was complete except Complainant's affidavit. The EEOC ordered the Agency to issue a final decision on the merits of complaint 1H-374-0056-10 (race and sex claims).1 Thereafter, the Agency issued a FAD finding no discrimination.
Complainant sustained an injury in March 2000. The Department of Labor, Office of Workers' Compensation Programs accepted her injury claim. Thereafter, she was offered a series of "rehabilitation" or modified positions, some of which referenced the above injury date. By 2007 or before, Complainant was working in a "rehabilitation" clerk position on Tour 2, which complied with limitations of lifting and carrying up to five pounds intermittently for four hours, and other limitations. In March 2008, she was offered, and accepted a modified assignment (limited duty) to perform clerical duties, work at the loose mail belt, and do scanning and surface visibility work, which required no lifting above five pounds. In February 2009, Complainant was offered and accepted another modified assignment with duties of working the loose mail belt, scanning mail, dating and timing mail, and answering the telephone. In April 2010, Complainant was offered a rehabilitation modified position on tour 2, which did not require lifting or carrying intermittently more than five pounds. Documentation in the record reflects that in October 2009 and June 2010, Complainant's medical limitations included a restriction of intermittent lifting up to five pounds two to four hours per work day, among other significant restrictions.
On July 28, 2010, effective July 31, 2010, the Agency offered Complainant a modified assignment (limited duty) on Tour 3 performing gatehouse activities, drop shipment verification, and working loose mail. This was done pursuant to the Agency's National Reassessment Process (NRP), a process to reassess all rehabilitation modified positions and limited duty modified assignments. According to the NRP Coordinator for Plants (Black male), the purpose of the NRP was to provide employees with necessary work, as opposed to "make" work.
The NRP Coordinator the Memphis NDC (African American female) (hereinafter NRP Coordinator) stated her role was to assign on the job injured employees operationally necessary work within their restrictions, and she looked at mail handlers and clerks. According to the counselor's report the NRP Coordinator indicated this applied to modified positions, and under phase 2 of the NRP Tour 2 modified positions were cut from seven to three. The NRP Coordinator stated that the NRP looked at all the available positions for each shift, and placed on the job injured employees with the oldest date of injury first. She explained that when searching for positions, the team first looked on the tour, then off the tour.
The NRP Coordinator stated that when they got down to Complainant's name on the list there was no work for her on Tour 2, so she was placed on Tour 3. She stated that Complainant performed basically the same clerk work on Tour 3.
The NRP Coordinator indicated that pursuant to the NRP, six employees remained on Tour 2 -- three black female clerks, two black female mail handlers; and one white male mail handler (Comparison 1). She stated that all their names appeared on the NRP before Complainant's name based on their dates of injury and that the NRP team was able to locate operationally necessary work for them on Tour 2 within their individual medical limitations. She indicated that three employees, including Complainant, were reassigned from Tour 2 to Tour 3 pursuant to the NRP -- a black female mail handler, a black male mail handler, and Complainant, a clerk.
Complainant contended that she was disparately treated from Comparisons 1 and 2 (white male Laborer Custodial) because they were allowed to remain on Tour 2. The NRP Coordinator indicated that she was not aware of Comparison 2.
In its FAD, the Agency found that Complainant did not prove a prima facie case of race and sex discrimination because she did not show she was disparately treated. It found that as a clerk, Complainant was not similarly situated to Comparison 1, a mail handler, or to Comparison 2, a laborer custodial. The Agency also noted that via the NRP, three black female clerks remained on Tour 2.
The Agency found that even if Complainant made out a prima facie case of race and sex discrimination, the NRP Coordinator articulated legitimate, nondiscriminatory reasons for reassigning Complainant from Tour 2 to Tour 3. The Agency found that Complainant did not prove the NRP Coordinator's explanation was pretext to mask race and sex discrimination.
ANALYSIS AND FINDINGS
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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
We agree with the Agency that Complainant has not established a prima facie case of race or sex discrimination. While she contends that she was disparately treated from Comparisons 1 and 2, white males, she has not shown she was similarly situated to them. Comparison 1 had an earlier injury date. Comparison 2 was a laborer custodial, and the NRP team who reassigned Complainant assessed clerks and mail handlers, not the same craft as Comparison 2. Complainant did not submit an affidavit and provided no information on Comparison 2 other than he was a white male who was allowed to remain on Tour 2. She has not shown she was similarly situation to Comparison 2. We add that three black female clerks who were subject to the NRP remained on Tour 2.
On appeal, Complainant argues that the Agency retaliated against her based on the Rehabilitation Act, and violated her seniority. Complainant did not previously raise reprisal discrimination regarding the reassignment, and there is no evidence of such in the record. Also, even if the date of injury policy violated Complainant's seniority rights, as she suggests, Complainant has not shown that the NRP team made exceptions to applying its date of injury policy based on race or sex. Complainant has failed to show pretext or discrimination.
The FAD is AFFIRMED.
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 (S0610)
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 (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
February 28, 2013
__________________
Date
1 On August 15, 2011, an EEOC AJ dismissed Complainant's request for a hearing, citing the EEOC decision in EEOC Appeal No. 0120111793. Complainant did not make a request for reconsideration from EEOC Appeal No. 0120111793, and does not raise the hearing issue on appeal. Complainant's disability claim is not before us on this appeal.
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0120113991
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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