01A20946
01-09-2003
Marie A. Straub, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marie A. Straub v. United States Postal Service
01A20946
January 9, 2003
.
Marie A. Straub,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20946
Agency No. 4J-460-0133-98
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.<1>
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 City Carrier, PS-05, at the post office in Hammond,
Indiana. Complainant sought EEO counseling and subsequently filed a
formal complaint on June 26, 1998, alleging that she was discriminated
against on the bases of sex (female), disability (multiple sclerosis),
and reprisal for prior EEO activity when, beginning February 20, 1998,
complainant's work hours were reduced, and beginning April 20, 1998,
after management was contacted by the EEO office on April 15, 1998,
complainant was no longer put on the work schedule.
The agency was advised in July 1997 of complainant's medical restrictions,
i.e., no heavy lifting, no repeat bending, and no working outdoors
in severe weather conditions, by her physician who had been treating
complainant for multiple sclerosis since May 1994. Complainant requested
and was placed on a temporary assignment to light duty in November
1997.<2>
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 first determined that complainant failed
to establish a prima facie case of sex, disability, or retaliation
discrimination. It also found that the agency articulated legitimate,
nondiscriminatory reasons for reducing complainant's hours and not
putting her on the work schedule, i.e., complainant's work hours were
reduced because she was unable to perform the core duties of her letter
carrier position, and there was insufficient light duty work available
to permit complainant to work her regular schedule. The agency concluded
that complainant did not met her burden of establishing that the agency's
articulated legitimate, nondiscriminatory reasons were a pretext to mask
discrimination, or present any evidence that S1 or any agency official
harbored a discrimination animus towards complainant.
CONTENTIONS ON APPEAL
Neither complainant or the agency has filed contentions on appeal.
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 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. See, Hochstadt v. Worcestor Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases).
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 sex, disability, and reprisal
discrimination. We now consider whether the agency articulated
legitimate, nondiscriminatory reasons for its actions. Complainant's
supervisor (S1) testified that complainant had been scheduled to work as
needed on a weekly basis from the onset of her request for light duty,
and that when complainant was available to work she was utilized to
her fullest capacity. S1 testified that when employees are absent the
agency utilizes all able personnel to fill the vacancies. However when
there was no work available within complainant's medical restrictions
she was sent home. S1 also testified that when complainant was not
on the schedule she was asked to call in to see if work was available
due to other employees having called in as unable to report for duty.
S1 testified that she was not at liberty to create work for a light
duty carrier without authorization, and that the agency is contractually
required to utilize limited duty carriers to capacity before utilization
of light duty personnel. S1 testified that complainant was not able
to work when there was no work available, e.g., when the mail volume
became lighter.
These are legitimate, nondiscriminatory reasons for the agency's action.
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. The 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 retaliation.
CONCLUSION
Therefore, after a careful review of the record, 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
January 9, 2003
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 "Light duty" is the duty provided to an employee who has physical
limitations, identified by a qualified physician, resulting from an
off-the-job injury/illness. It differs from "limited duty," which is
duty provided to an employee who has physical limitations, identified
by a qualified physician, resulting from an on-the-job injury/illness.
Effective February 13, 1999, complainant was reassigned, at her request,
to the position of Distribution Window Clerk.