01a40858
09-13-2005
Sally Cogan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sally Cogan v. United States Postal Service
01A40858
September 13, 2005
.
Sally Cogan,<1>
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40858
Agency No. 4F-950-0048-01
Hearing No. 370-A1-X2480
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision 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.
The record reveals that complainant, a limited duty modified distribution
clerk, filed a formal EEO complaint on February 2, 2001, claiming that
the agency discriminated against her on the bases of race (Asian), sex
(female), disability, and in reprisal for prior EEO activity when:
On October 20, 2000, she was issued a suspension regarding an incident
that occurred on August 7, 2000;
On October 20, 2000, she was issued a Letter of Warning regarding an
incident that occurred on September 27, 2000;
On October 27, 2000, her doctor's notes were allegedly discounted and
she was purportedly required to work beyond her limitations;
On October 28, 2000, she was required to bring a doctor's note to the
office and denied a Form CA-1;
On October 30, 2000, complainant was allegedly told that she needed to
change to another doctor if the medication prescribed to her made her
feel bad and she was told to have her doctor fax an explanation;
On November 20, 2000, complainant was reassigned to the Willow Glen
station; and
On December 16, 2000, complainant was given a Letter of Demand for an
October 28, 2000 AWOL charge.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision on September
16, 2003, finding no discrimination.<2>
The agency's final order, dated October 23, 2003, implemented the AJ's
decision.
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-part 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 case 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 determines that the record supports a finding that
legitimate, non-discriminatory reasons supported the agency's actions
with regard to all claims, as more fully discussed below.
Claim (1)
Regarding the claim that complainant was issued a seven-day suspension
(claim 1), the AJ found no discrimination. The AJ found that the agency
provided evidence that an investigation was conducted regarding the
discovery of Express Mail envelopes beneath a counter in complainant's
work station. According to the agency, the investigation substantiated
management's conclusion that complainant placed the Express Mail
envelopes below her counter and forgot about them, thereby causing the
mail to be delayed. The AJ found that complainant's immediate supervisor
determined that a suspension was warranted because this delay caused the
Postal Service to fail in its obligation to provide next day delivery
for Express Mail.
Claim (2)
Regarding the claim that complainant was issued a Letter of Warning (claim
2), the AJ found no discrimination. The AJ found that complainant was
issued a Letter of Warning because she failed to follow her supervisor
instructions to assist customers who were mailing light weight mail such
as Express or Priority mail. The AJ noted that although complainant
contends that those duties were outside her restrictions, complainant's
supervisor reasonably believed that based on complainant's rehabilitation
position she could accept light weight mail as she was doing routinely
until approximately August 8, 2000, when she was disciplined for failure
to dispatch Express Mail.
Claim (3)
Regarding the claim that her doctor's notes were discounted, and that
she was required to work beyond her limitations (claim 3), the AJ found
no discrimination. According to the record, complainant submitted to her
first level supervisor a doctor's note on October 27, 2000, stating that
she could not sell stamps for two months, and that she could not push or
pull anything at work �forever.� Complainant's first level supervisor
transmitted this note to the Injury Compensation representative, who
indicated that based on complainant's rehabilitation position, complainant
should be able to sell stamps, and requested an explanation regarding what
�bio-medical aspect of selling stamps� rendered complainant incapable
of performing this assignment. Complainant's first level supervisor
indicated that complainant was purportedly unable to pull open and to
push closed the cashier's drawer. The record reflects that the Injury
Compensation Specialist thereupon reviewed complainant's rehabilitation
position and determined that complainant should be able to push and pull
with her right hand. The Injury Compensation specialist stated that if
complainant's medical restrictions had changed, her doctor should submit
a CA-17 form indicating the specific bio-mechanical restrictions.
The record also reflects that an Injury Compensation Manager testified
that FECA requires that a physician provide bio-mechanical restrictions,
rather than simply stating that an employee is incapable of performing a
certain duty. The Injury Compensation Representative informed complainant
that selling stamps was within complainant's medical restrictions,
and the first level supervisor instructed complainant to sell stamps
for two hours, as described in the rehabilitation position.
The record contains a copy of a rehabilitation job offer dated March
24, 1997. Therein, the agency stated that complainant's duties included
�selling stamps for up to 2 hours on an as-needed basis.� Complainant
signed the March 24, 1997 job offer, indicating her concurrence with the
offer. The AJ concluded that based on complainant's medical restrictions,
complainant's first level supervisor instructed her to sell stamps for
two hours as described in her rehabilitation position.
Claim (4)
Regarding the claim that she was required to bring a doctor's note to
the office, and that she was denied a Form CA-1 (claim 4), the AJ found
no discrimination. The AJ found credible the testimony of complainant's
first level supervisor that on October 28, 2000, complainant called
in sick and stated that the reason for her absence was job related.
The first level supervisor testified that because complainant suffered
a work related injury, complainant was required to provide medical
documentation to substantiate her inability to work. The first level
supervisor also testified, concerning the denial of Form CA-1, that this
form was kept in an unlocked supply room, accessible to complainant,
and that complainant could have obtained the form on her own.
Claim (5)
Regarding the claim that the first level supervisor indicated to
complainant that perhaps she should change doctors if the medicine he
prescribed was making her sick (claim 5), the AJ found that there is no
evidence that this remark was discriminatory. The AJ also found that with
respect to the supervisor's request to have complainant's physician fax
further explanation regarding her medical limitations, the AJ determined
that the supervisor requested this information because it was the practice
of the agency to provided some type of work for limited duty employees,
absent the employee's complete inability to work.
Claim (6)
Regarding the claim that complainant was reassigned to the Willow Glen
station and that her work hours were change (claim 6) , the AJ found no
discrimination. The AJ determined that by letter dated November 1, 2000,
complainant's physician stated that complainant was unable to return
to work due to depression, but that if she was transferred to another
department, she would be able to return to work. The AJ found that based
on the physician recommendation, the Injury Compensation Office provided
complainant a new rehabilitation position at Willow Glen Station with the
same duties, however, due to the needs of the office, her work schedule
was changed. The AJ determined that complainant presented no evidence
that the reassignment and change in work hours were discriminatory.
Claim (7)
Regarding the claim that complainant was given a Letter of Demand for an
October 28, 2000 AWOL charge (claim (7)), the AJ found no discrimination.
The AJ determined that complainant's supervisor charged complainant
with AWOL because she considered the medical documentation submitted
by complainant inadequate. The AJ also determined that the AWOL was
subsequently changed to sick leave as a result of a grievance settlement.
The AJ noted that although complainant also claimed discrimination and
retaliation due to the delay of the agency to change the AWOL to sick
leave after the settlement agreement, complainant failed to present
evidence to demonstrate that the agency action was discriminatory.
The Commission agrees with the AJ that the agency presented legitimate,
non-discriminatory reasons for its action. The Commission notes,
moreover, that complainant did not establish that the agency's articulated
reasons were a pretext for discrimination.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We discern
no basis to disturb the AJ's decision. Therefore, we AFFIRM the agency's
final order, implementing the AJ's finding of no discrimination.
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
September 13, 2005
__________________
Date
1Complainant is also referred to as �Sally
Huang� in various documents contained in the record.
2The Commission presumes for purposes of analysis only, and without so
finding, that complainant is a qualified individual with a disability.