01986211
08-25-2000
Sandra A. Gaudio, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sandra A. Gaudio v. USPS
01986211
08-25-00
.
Sandra A. Gaudio,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01986211
Agency No. 4J600007297
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
Whether the agency correctly determined that complainant was not
discriminated against on the basis of mental disability (learning
deficiency) when by letter dated December 3, 1996, she received a seven
day suspension for conduct unbecoming a postal employee for an incident
that occurred on November 30, 1996.
BACKGROUND
During the relevant period, complainant was employed by the agency
as a Full-Time Distribution Clerk at the Lake Zurich Post Office,
Lake Zurich, Illinois. She filed a formal complaint on October 30,
1997, alleging discrimination on the basis of mental disability for
the seven day suspension discussed above. Upon completion of the
investigation, complainant was notified of the opportunity to request
either a hearing before an EEOC Administrative Judge or a FAD without
a hearing. Complainant requested a FAD. The agency issued its FAD on
July 10, 1998, finding no discrimination. This appeal by complainant
followed without comment.
ANALYSIS AND FINDINGS
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, she 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.
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. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, 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. 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. U.S. Postal
Serv. Bd. 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 Serv., EEOC Request
No. 05900467 (June 8, 1990); Washington v. Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
As a preliminary matter, the Commission notes that the Rehabilitation
Act does not preclude an agency from enforcing standards of conduct,
as long as such standards are job-related, consistent with business
necessity, and enforced uniformly among all employees. The Commission's
Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities, No. 915.002 (March 25, 1997) states that "an
employer may discipline an employee with a disability for engaging in
. . . misconduct if it would impose the same discipline on an employee
without a disability." Id. at 29.
In response to complainant's claim that she was discriminated against
when she received the seven day suspension, we find that the agency
has articulated legitimate, nondiscriminatory reasons for its action,
namely that the suspension was warranted by complainant's behavior.
The record shows that complainant received the suspension for her
unacceptable conduct on November 30, 1996. Complainant screamed at
another employee, �Stay out of my face, b----.� The agency stressed
that complainant's disability was never identified as a behavioral
disorder or anger control issue. There is no evidence in the record that
complainant had a behavioral or anger control disability. Rather, she had
a learning impairment that required additional time to learn or complete
a task. Thus, the agency found that the suspension was warranted both
by the November 30, 1996 incident and complainant's other incidents of
misbehavior, as evidenced by two letters of warning dated March 28, 1996,
and October 25, 1996. These warnings were both for conduct unbecoming a
postal employee. Since the agency articulated such reasons, the burden
returns to complainant to demonstrate that the agency's articulated
reasons were a pretext for discrimination. We find that complainant has
failed to do so. Complainant asserts that other employees have used
swear words at work and they have not been suspended for seven days.
The agency admits that other employees have used swear words at work,
but explains that complainant received the suspension because the incident
was merely the culmination of misbehavior for which she needed ultimately
to be disciplined. A review of the record verifies that complainant had
discipline problems prior to November 30, 1996, which her supervisor
discussed with her and warned her about. The record also shows that
complainant's behavior was contrary to specific information provided
to employees regarding workplace behavior, violence in the workplace,
respect for other employees, and common courtesy. Additionally,
the record contains no other evidence of pretext. Therefore, the
agency's determination that complainant failed to establish that she
was discriminated against is supported by the record.
CONCLUSION
The decision of the agency is hereby AFFIRMED.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
__08-25-00________________
Date
1On 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.