Robert Woodley, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 21, 2007
0120055566 (E.E.O.C. Feb. 21, 2007)

0120055566

02-21-2007

Robert Woodley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robert Woodley,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200555661

Agency Nos. 4G-870-0073-03

4G-870-0177-03

Hearing No. 350-2004-0016X

DECISION

Complainant timely initiated an appeal from the agency's July 18, 2005

final order concerning two formal complaints 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. The appeal is accepted

pursuant to 29 C.F.R. � 1614.405(a).

During the relevant time complainant was employed as a Part-Time Flexible

(PTF) Letter Carrier at the agency's Highland Station in Albuquerque,

New Mexico. On March 14, 2003 and September 9, 2003, complainant filed

two formal EEO complaints. Therein, complainant claimed that he was

the victim of unlawful employment discrimination on the bases of race

(African-American), sex (male), color (black), and in reprisal for prior

EEO activity.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). On March 30, 2005, the AJ issued a Pre-hearing

Order consolidating complainant's two complaints for processing.

On April 13, 2005, the AJ issued another Pre-hearing Order. Therein,

the AJ determined that she would only address the following seven claims

during the hearing:

(1) on January 28, 2003, after submitting a physician's release to return

to full duty, complainant's supervisor informed him that his documentation

was not sufficient and he was not permitted to return to duty;

(2) on February 19, 2003, he submitted a letter requesting annual leave

until he could see his doctor for clearance, and he became aware on

March 12, 2003, that he was not paid annual leave;

(3) on March 15 and 17, 2003, he was again informed that his medical

documentation was unacceptable, and he was not allowed to return to work,

removed from leave status, and placed on non-paid status;

(4) on October 29, 2003, a junior employee was assigned to a route that

was his third option, while complainant was given a more difficult and

less desirable assignment;

(5) on November 8, 2003, over 90 percent of his route was cased before

he arrived and he was not allowed to call for help;

(6) on November 24, 2003, his T-6 string was abolished; and

(7) on December 3, 2003, his reporting time was revised to 10 a.m. and

his work hours were reduced to less than 40 hours per week. 2

Following a hearing on May 25, 2005, the AJ issued a bench decision

finding no discrimination. During the hearing, complainant's

representative informed the AJ that the primary focus of complainant's

complaint was his medical documentation claim (claims (1) and (3))

and work assignment claim (claim (4)) (Hearing Transcript at p.16).

The representative also waived sex as a basis. Accordingly, the AJ only

addressed claims (1), (3) and (4).

In her bench decision, the AJ found that complainant failed to establish

a prima facie case of race and color discrimination. Specifically, the

AJ found that complaint failed to demonstrate that similarly situated

employees not in complainant's protected classes were treated differently

under similar circumstances. As to complainant's reprisal claim, the AJ

found that complainant failed to establish a prima facie case of reprisal

discrimination because there was no evidence of prior EEO activity.

The record contains the following testimony and documentation regarding

claims (1), (3) and (4).

Regarding claim (1), the record reflects that complainant's immediate

Supervisor (S1) stated that on January 10, 2003, complainant left

work in the morning on sick leave claiming a stress-related illness.

S1 further stated that complainant later returned to work later in the

afternoon with a doctor's note advising him to take two weeks off.

S1 stated that she sought guidance from the Station Manager (SM) on

what action she should take. S1 stated that SM contacted the agency

nurse and then informed her that complainant "met the requirement for a

'high-risk' diagnosis (i.e. mental health condition...).'" S1 stated

that she received instructions from SM and agency nurse that complainant

was not to return to work until he provided sufficient documentation to

be cleared by the agency nurse.

S1 stated that on January 28, 2003, complainant returned to work and she

asked him for his medical documentation. S1 stated that after reviewing

his documentation, she informed complainant that it was insufficient, and

provided him a letter given to her by the agency nurse "stating exactly

what information she needed from his doctor to be cleared to return to

work." S1 stated that she then instructed complainant that he would not

be able to return to work until he provided sufficient documentation.

S1 stated that she followed the following agency regulations in denying

complainant's documentation: Operating Instruction A-46; Employee Labor

Manuel (ELM) Sections 865.2 and 865.3; and the Memorandum of Understanding

JCAM.

The record contains a copy of ELM Sections 865.2 "Other Required

Certification" and 865.3 "Contents of Certification." Therein, Section

865.2 provides that "employees returning to duty after an absence for

communicable or contagious diseases, mental and nervous conditions,

diabetes, cardiovascular diseases, or seizure disorders or following

hospitalization must submit a physician's statement doing one of the

following: (a). Stating unequivocally that the employee is fit for full

duties without hazard to him or herself or others. (b). Indicating the

restrictions that should be considered for accommodation before return

to duty..."

Further, Section 865.3 provides that "all medical certifications must

be detailed medical documentation and not simply a statement of ability

to return to work. There must be sufficient information to make a

determination that the employee can return to work without hazard to

self or others."

Regarding claim (3), S1 stated that on March 15, 2003, complainant

submitted his medical documentation "but because the nurse was not on duty

on Saturday he was sent home by [Supervisor] until the nurse returned

on Monday." S1 further stated that on March 17, 2003, complainant's

documentation was "originally denied by the OHNA nurse because it

was not signed by his attending physician but rather a PA." S1 stated

after further consideration the nurse contacted SM and informed her that

complainant was cleared to return to duty. S1 stated that SM attempted

to contact complainant to notify him that he was cleared to return to

duty in the afternoon of March 17, 2003 but was unable to reach him.

Further, S1 stated that during the relevant time, complainant was

placed in a non-paid status. S1 further stated that complainant filed

a grievance concerning the March 15 and 17, 2003 incidents, and "was

re-credited annual leave with no loss of pay."

The record further reflects that SM stated that because the nurse does

not work on Saturdays, complainant was not allowed to work on March

15, 2003. SM stated that she faxed complainant's documentation to the

nurse; and that the nurse called her stating that the documentation

was not signed by a doctor "and she could not accept it." SM stated

that after she explained to complainant why his documentation was not

accepted, she contacted the Manager of Human Resources "and asked him

to talk to the nurse to determine what we needed to do from there."

SM stated that the Manager of Human Resources later called her and

informed her that complainant was cleared to return to work. SM stated

"I attempted to contact the complainant, but could not get a hold of him."

SM stated that she then asked the union steward to contact complainant.

The record further reflects that during his testimony, complainant

acknowledged he was paid for the period of March 15, 2003 to March 17,

2003.

Regarding claim (4), the record reflects that a Supervisor, Customer

Services (SCS) stated that on October 22, 2003, he posted the schedule

for the following week in accordance with the National Association of

Letter Carriers contract which requires that work schedules be posted

by Wednesday of the preceding week. SCS further stated that on October

24, 2003, he received complainant's opt request to work on Route 808

which had already been awarded to another PTF Carrier. SCS stated that

"Route 808 was assigned to another PTF who turned in his opt prior to

the schedule being done on 10-22-03." SCS stated that he initially

scheduled complainant "for route 829 which ended up being his second

choice for opt" but he raised objections with the union. SCS stated

that he and the union agreed that complainant would receive a string

of five routes (Routes 813, 814, 815, 816 and 817) to work and be paid

at a higher level. SCS stated that the route that complainant received

"was his third choice."

Regarding complainant's assertion that the route he received was less

desirable, SCS stated "I do not feel that it was less desirable."

SCS further stated "the majority of the routes in this office are park

and loop. The routes assigned to [complainant] are mainly park and loop

and do not receive any less or more mail than the other routes."

On July 18, 2005, the agency issued a final action implementing the AJ's

finding of no discrimination concerning claims (1), (3) and (4).

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. See

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department 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 basis of a prohibited reason.

See 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. 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. See 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).

The Commission finds that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Complainant has not shown that

the agency's articulated reasons were a pretext for discrimination.

Accordingly, the agency's final action implementing the AJ's finding of

no discrimination concerning claims (1), (3) and (4) was proper and is

AFFIRMED.

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

February 21, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2 The record reflects that the agency issued two separate partial

dismissals, dated August 18, 2003 and on March 11, 2004. Complainant

does not specifically challenge the agency's partial dismissals.

Therefore, we will not further address the matters that were dismissed

therein.

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0120055566

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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