01974565
03-20-2000
Milinda Spranger, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Milinda Spranger v. United States Postal Service
01974565
March 20, 2000
Milinda Spranger, )
Complainant, )
) Appeal No. 01974565
v. ) Agency No. 1F-957-1046-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination on
the bases of sex (female), reprisal (prior EEO activity), and mental
disability (work related stress), in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
Complainant alleges she was discriminated against when, in March 1996,
the agency denied her request for 240 hours of advanced sick leave.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission affirms the FAD's finding of
no discrimination.<2>
The record reveals that during the relevant time, complainant was employed
as a PS-06 LSM Clerk at the agency's Processing and Distribution Center
in West Sacramento, California. Complainant stated that she was unable to
work because of her mental disability, and, as a reasonable accommodation,
she requested 240 hours of advanced sick leave "to help bridge the
financial gap until OWCP made a decision on her disability claim."
The agency denied her request stating that "since you have, within the
last six months, just returned to work after a work related absence,"
there is no guarantee that the agency can recoup the advancement.
Believing the agency denied her a reasonable accommodation and treated
her less favorably than other individuals, complainant sought EEO
counseling and subsequently filed a formal complaint on June 22, 1996.
At the conclusion of the investigation, when complainant failed to timely
request a hearing before an EEOC Administrative Judge, the agency issued a
final decision from which complainant now appeals. On appeal, complainant
presents no new evidence but reiterates her claims of discrimination.
The agency requests that we affirm its final decision.
Reasonable Accommodation Discrimination under the Rehabilitation Act
Federal agencies are required to provide reasonable accommodation to
qualified individuals with disabilities who are employees or applicants
for employment unless to do so would cause undue hardship.<3> 29 C.F.R. �
1630.9(a). An employee is a qualified individual with a disability if the
employee has a disability which substantially limits one or more major
life activities but who can, with or without reasonable accommodation,
perform the essential functions of the position in question or the
essential functions of any position which she could have held as a
result of job restructuring or reassignment. 29 C.F.R. � 1630.2;
Hawkins v. United States Postal Service, EEOC Petition No. 03990006
(February 11, 1999). The record contains no medical documentation of
complainant's disability. However, the Commission takes judicial notice
of its decision in Stander v. United States Postal Service, EEOC Appeal
No. 01930152 (February 17, 1994) wherein we found that complainant,
who suffered from major depression and dysthmia, was covered under the
Rehabilitation Act.<4> Accordingly, for purposes of this analysis, we
will assume that complainant is a qualified individual with a disability.
29 C.F.R. � 1630.2(m).
In the instant case, complainant contends that she cannot work due to
her stress and as a reasonable accommodation, requests advanced sick
leave. A reasonable accommodation enables an individual employee with a
disability to perform the essential functions of a position or to enjoy
equal benefits and privileges of employment as are enjoyed by employees
without disabilities. 29 C.F.R. � 1630.2(o). Complainant wanted
the advanced sick leave only to ensure that she would be financially
compensated while she waited for OWCP's decision on her disability claim.
While leave without pay may be a reasonable accommodation when the
leave is requested for treatment of the disability at issue, see Gore
v. Department of Health and Human Services, EEOC Appeal No. 01931927
(May 5, 1994), in the instant case, the advanced sick leave was not
requested for the purpose obtaining treatment. We thus conclude that
complainant's request for advanced sick leave was not a request for a
reasonable accommodation and that the agency's denial of her request was
not an act of discrimination within the meaning of the Rehabilitation Act.
Disparate Treatment Discrimination under Title VII and the Rehabilitation
Act
Based on the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester 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), the
Commission finds that complainant failed to establish a prima facie case
of sex discrimination or retaliation. Regarding sex discrimination,
although complainant names a male employee who was advanced sick leave,
there is no evidence that he requested advanced leave for the same reason
complainant did, and thus we find that he was not similarly situated
to complainant. Regarding retaliation, we note that the supervisor who
denied the advanced sick leave was aware of complainant's prior protected
activity, and complainant asserts that management was vindictive because
of her success in a prior EEO claim. However, we find no evidence that
supports her assertion or that establishes either a temporal or causal
link between her prior protected activity which occurred in the early
1990s and the denial of her request for advanced leave. See Devereux
v. United States Postal Service, EEOC Request No. 05960869 (April 24,
1997).
The Commission also finds that complainant failed to establish a prima
facie case of disability discrimination under the theory of disparate
treatment because complainant failed to identify a similarly situated,
non-disabled employee who was treated more favorably than she was under
similar circumstances or to proffer any other evidence which, if left
unexplained, would support an inference of discrimination. See Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
Even assuming that complainant established a prima facie case of
discrimination or retaliation, the agency articulated a legitimate,
nondiscriminatory reason for its action, namely that since complainant
had, within the last six months, returned to work after a work-related
absence, the agency could not guarantee that it could recoup the
advancement. On appeal, complainant argues that she had adequate
retirement funds to cover her sick leave request. It is unclear,
however, whether management was under any obligation to assess whether
complainant's retirement fund was sufficient to recoup the advancement
if she failed to return to work. Moreover, we find that management's
concern was reasonable given complainant's pending OWCP claim. See Cook
v. United States Postal Service, EEOC Appeal No. 01950027 (July 17,
1998), aff'd, EEOC Request No. 05981041 et al. (August 5, 1999).
Accordingly, we decline to find that the agency's explanation for denying
complainant advanced sick leave was a pretext for unlawful discrimination
or retaliation.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD's finding
of no discrimination for the reasons stated herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
3/20/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.
2 Although we agree with the FAD's ultimate finding, the Commission
notes that the FAD's legal analysis, which was generally unsupported
and disorganized, was of very poor quality. See Alaban v. United States
Postal Service, EEOC Appeal No. 01956281 (June 25, 1997).
3 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
4 Complainant was formerly known as Milinda Stander.