0120092316
10-18-2011
Shirley J. Pierce, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Shirley J. Pierce,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120092316
Agency No. 1C-081-0020-08
DECISION
On April 27, 2009, Complainant filed an appeal from the Agency's April 20, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency's South Jersey Processing & Distributing Center in Bellmawr, New Jersey.
On October 26, 2008, Complainant filed a formal complaint. Therein, Complainant claimed that she was the victim of unlawful employment discrimination on the bases of disability (hearing impairment and knee/back injury) when:
1. on or about February 14, 2008, the Agency notified Complainant that she would become unassigned, due to the failure to meet the physical requirements of her position; and
2. on or about May 22, 2008, the Agency did not permit Complainant to bid on reposted Clerk Craft positions.
The record reflects that the Agency and Complainant originally agreed to settle her allegations on April 22, 2008. The settlement agreement provided that the Agency would provide Complainant with a permanent schedule of 5:00 p.m. to 1:30 a.m., with Thursdays and Fridays off. The parties agreed to maintain this schedule until either (1) Complainant voluntarily sought a different assignment; or (2) "legitimate operational needs dictate a change with the schedule."
One month later, Complainant alleged breach. Specifically, Complainant claimed that the Agency reassigned Complainant within only one month of executing the agreement. On appeal, the Commission vacated an Agency finding of no breach, and remanded the matter to the Agency from the point where processing ceased. The Commission determined that both parties had assumed that a stable work environment would allow the Agency to comply with its obligations under the agreement. The Commission determined, however, that the parties engaged in a mutual mistake. The matter was remanded to the Agency for further processing from the point where processing had ceased. Pierce v. United States Postal Service, EEOC Appeal No. 0120083205 (September 24, 2008).
Thereafter, Complainant added the basis of reprisal to the underlying complaint.
The record reflects the following salient matters regarding Claim 1. Complainant has been hearing impaired since 1968. In addition, Complainant sustained an injury to her lower back in 1995. In 2006, Complainant sustained a knee injury, which further aggravated the pre-existing back injury. As a result of the injuries, and specifically since her knee injury, Complainant has difficulty standing or sitting for long periods of time and has been prescribed several pain medications. With respect to her employment with the Agency, Complainant has long been assigned to Tour 3.
On January 23, 2007, the Agency awarded Complainant the bid position at issue in Claim (1). Because Complainant was a limited duty employee, the Agency's offer was made conditional. Pursuant to the union contract, the Agency awards a bid to a limited duty employee contingent on the employee's providing evidence (such as a doctor's note) that she would be capable of performing the functions of the job within six months. If the employee does not successfully perform the job at the end of this first six-month period, but provided evidence that she would be able to perform the job within the following six-month period, the Agency's conditional offer would remain live for that period. If, however, after the end of twelve months, the employee still could not successfully perform the functions of the job, the Agency would rescind the bid and the employee would become an unassigned regular, free to select from available residual vacancies.
In this case, Complainant's bid contained two primary functions: automated mail processing, and registry cage relief. Complainant's restrictions at the time the Agency conditionally awarded the bid, Complainant was restricted to desk work and "no repetitive grasping." The Acting Manager (AM) responsible for monitoring Complainant's bid averred that Complainant's restrictions, absent improvement, would preclude her from qualifying for the bid, because Complainant would not be able to do automated mail processing.
Complainant provided a note from her doctor stating that she would be able to perform the core functions of her bid within six months. At the end of the first six months, she again provided a note from her doctor, and by the end of twelve months, Complainant still had not performed the core functions of her job. On February 14, 2008, the Agency rescinded the award. The Agency sent Complainant a letter on July 16, 2008. The letter informed Complainant that she was an unencumbered employee and could select from a variety of residual vacancies on Tour 1.
The record reflects the following salient matters regarding Claim (2). Complainant alleges she was discriminated against when the Agency posted a list of Tour 3 employees who were eligible to repost for clerk craft vacancies on Tour 3. Complainant attached the list to her sworn affidavit. The list is entitled, "Senior Employees Eligible for T-3 [Tour 3] Level 6 Closed Bid." Complainant explains that she was excluded from applying for these vacancies because the Agency closed the eligibility to those employees already working T-3 Level 6. Complainant alleged she was senior to thirty-seven of the eligible employees.
AM explained that the Agency was excessing certain sections at that time, including T-3 Level 6. All the employees in T-3 Level 6 had to re-bid for their positions, and bids were awarded based on seniority. Therefore, the bid process with respect to T-3 Level 6 was closed to employees already working there. Because Complainant was an unencumbered regular and not assigned to Tour 3, she was not eligible to bid on these positions. She was eligible, however, to bid for any other open vacancy for which she is qualified and capable of performing.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, the crux of Complainant's argument is that the Agency placed the standard request for hearing form in the middle of her investigative file. Specifically, Complainant argues, "I did not know my request for hearing form was put into one of my investigative booklets that was sent in February. . . . To my surprise the request for hearing form was in my last book to review with my arguments . . . why would they put it into that booklet?? . . . If not told by my union rep whom encountered the same problem, I would have continued to wait for request for hearing form to be sent through the mail."
In its response, the Agency notes that, by letter placed on top of the investigative file, it informed Complainant that she had thirty days from the date of receipt of the investigative file to request a hearing. In that letter, the Agency stated: "To request a hearing, you must fill out the enclosed form, which the Commission has suggested for such requests, and mail it within thirty (30) calendar days of your receipt of this notice . . . ." (Emphasis in original.) The Agency therefore argues that Complainant was put on sufficient notice regarding the request for hearing form. In addressing the merits of Complainant's claims , the Agency argues that it properly determined Complainant failed to prove discrimination as alleged.
In reply to the Agency's response, Complainant argues that the Agency should have either placed the request for hearing form in the front of the booklet, or mailed it separately. Complainant does not address the Agency's arguments regarding the letter it provided with the investigative file.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case with respect to Complainant's claims, however, because the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In this case, the AM articulated legitimate, nondiscriminatory reasons for both Claims (1) and (2). In Claim (1), AM explained that, because of Complainant's physical limitations, the Agency's policy and contract with the union required the Agency to conditionally award her the position. Complainant needed to prove within twelve months that she was physically capable of performing the job. When her physical limitations continued to prevent her from performing the automated mail processing duties, the Agency rescinded the award and classified her as an unencumbered regular as dictated by its rules and its contract with the Union.
As to Claim (2), the AM explained that T-3 Level 6 was subject to excessing. Thus, the Agency reposted the positions within that section in accordance with Agency rules, and closed the eligibility for these positions to employees already working there. Because Complainant was an unencumbered regular and not working in that section, she was not eligible to bid on these positions.
Throughout the investigation, Complainant offered no evidence or arguments tending to establish, by the preponderance of the evidence, that the Agency's articulated reasons are pretext for discriminatory animus. And Complainant fails to offer any arguments on appeal that warrant reversing the Agency's decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 18, 2011
__________________
Date
2
0120092316
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092316