01a03602
11-09-2000
Mitzie Ketner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Alleg./Mid-Atl. Region), Agency.
Mitzie Ketner v. United States Postal Service (Alleg./Mid-Atl. Region)
01A03602
November 9, 2000
.
Mitzie Ketner,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Alleg./Mid-Atl. Region),
Agency.
Appeal No. 01A03602
Agency No. 4D-280-1070-95
DECISION
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,<1> 29 U.S.C. � 791 et
seq.<2> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405). Complainant alleged
that she was discriminated against on the bases of sex (female), physical
disability (limited duty), and retaliation (prior EEO activity) when:
(1) On May 19, 1994, she received a Letter of Warning;
On December 8, 1994, she was offered a limited duty assignment at the
Kannapolis, NC Post Office; and
(3) On December 21, 1994, negligence by the Postmaster (PM)
caused an injury to complainant.
The record reveals that during the relevant time, complainant was employed
as a Rural Carrier at the agency's China Grove, NC Post Office facility.
Having suffered an on-the-job injury to her spine, complainant was
already on limited duty, but she was offered the Kannapolis assignment
on the basis that she could no longer be provided full time work within
her medical restrictions at China Grove. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed formal complaints on August 23, 1994, and March 10, 1995.
The complaints were consolidated for investigation and 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. Although complainant requested a hearing,
she repeatedly requested postponement of the hearing date, and after
two and a half years, the complaints were remanded to the agency for a
decision on the record, and the agency issued a FAD.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination on any basis for each of the
three complaint issues and that, in any case, the agency articulated
legitimate, nondiscriminatory reasons for its actions which complainant
did not prove were a pretext to mask discrimination.
On appeal, complainant states that she wishes to appeal only the issue of
her limited duty assignment (issue 2 above). She contends that she never
wanted to transfer to Kannapolis and did so only because the PM told her
that if she did not, it would end her agency career. Complainant further
contends that she lost seniority when she was transferred. The agency
requests that we affirm its FAD.
To determine whether complainant was a victim of discrimination based
on sex, physical disability, and retaliation, we normally utilize the
three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981) (applying McDonnell Douglas to disability cases);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases). For complainant to
prevail, she must first establish a prima facie case of discrimination
that, if unexplained, reasonably gives rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Co. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears
the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the bais of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases, however. Where the
agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In response to complainant's contention of discrimination, the agency
noted that complainant was offered the limited duty assignment at
Kannapolis, NC because it was within her medical restrictions and the
China Grove PM determined that complainant could no longer be accommodated
within her restrictions to keep her employed for a full 8-hour day on a
continuous basis at China Grove, due to a decrease in available work.
Although complainant was reassigned to the position of Part-Time
Flexible Distribution Clerk at the Kannapolis Post Office, she did not
lose any salary or leave, and was reimbursed for all medical expenses,
in accordance with the Federal Employee's Compensation Act covering
employees, like complainant, injured in the performance of their duties.
Furthermore, the agency's Senior Injury Compensation Specialist testified
that complainant was offered and voluntarily accepted the limited duty
assignment in the presence of herself and the District Manager, Human
Resources, after the procedures surrounding the assignment were explained
to her.
Thus, assuming that complainant established that she was an individual
with a disability, we note that since the agency articulated the
above reasons for its reassignment of complainant which we find to be
legitimate and nondiscriminatory, the burden returns to the complainant
to demonstrate that these reasons were a pretext for discrimination.
We determine that complainant has failed to do so. Complainant argues
that the China Grove PM had a discriminatory animus against her and would
not let her handle China Grove's mail, even though earlier PMs did and
kept her fully employed in the period 1991 - 1994. Complainant contends
that the PM's ostensible reason for not letting complainant process China
Grove mail was that she had falsely accused complainant of throwing a
letter in the trash instead of processing it. Here, complainant notes
that shortly after she was transferred to Kannapolis, the China Grove
PM then hired a Kannapolis city carrier to work in her office as a mail
clerk, so there must have been enough work for complainant to do at
China Grove.
For her part, the China Grove PM testified that it was not her decision
to offer complainant a limited duty assignment but that the Injury
Compensation Office handled the limited duty assignment and sent her
the paperwork so that complainant could sign it. She further testified
that she did not make complainant sign the offer, nor did she tell her
it would end her career with the agency if she did not accept the offer.
In addition, complainant did not accept the offer in her presence because
she had some questions to ask the Manager, Human Resources.
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. In reaching this conclusion, we note that
complainant, while contending that there was still work available for
her at China Grove station, as evidenced by the PM's hiring of a mail
clerk shortly after she was transferred, did not present any evidence
that there was enough work available within her medical restrictions
for her to work full time. We further find credible the China Grove PM's
testimony that contrary to complainant's contention, the PM did not tell
her that if she did not accept the limited duty assignment, her career
with the agency would end. In this regard, we note the PM's statement
that complainant did not accept the offer in her presence since she had
some questions about the assignment to ask the Manager, Human Resources.
We also find this statement credible as it conforms to the statement
of the Senior Injury Compensation Specialist that complainant accepted
the job offer only after the procedures surrounding the assignment were
explained to her by the Specialist and the Manager, Human Resources.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
November 9, 2000
Date
1The 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 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.