01974502
09-09-1999
Tanya L. Jones, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Tanya L. Jones v. United States Postal Service
01974502
September 9, 1999
Tanya L. Jones, )
Appellant, )
) Appeal No. 01974502
v. )
) Agency Nos. 4D-2001137-94
William J. Henderson, ) 4D-2001163-94
Postmaster General, ) 4D-2001192-94
United States Postal Service, )
Agency. ) Hearing Nos. 120-95-6502X
) 120-95-6503X
_______________________________) 120-95-6504X
DECISION
Appellant filed an appeal with this Commission from a final decision
of the United States Postal Service (agency) concerning her complaints
of unlawful employment discrimination, in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges discrimination based upon her race (black), sex (female)
and reprisal (prior EEO activity) when: (1) she was not allowed to work
"significant" overtime from January through August, 1994; (2) her leave
request was denied or delayed in February, 1994; (3) she was denied light
duty on March 8, and April 15, 1994; (4) she was issued disciplinary
actions on March 17 and 23, 1994; (5) she was not selected for the
position of EAS-16 Supervisor of Customer Services on March 16, 1994;
and (6) she was denied a schedule change on April 1, 1994. The appeal
is accepted in accordance with EEOC Order No. 960.001.
On September 28, 1994, appellant filed formal complaints alleging
discrimination as referenced above. Appellant's complaints were accepted
for processing. Following an investigation, appellant requested a
hearing before an EEOC Administrative Judge (AJ). On December 5, 1995,
February 14 and 15, 1996, a hearing took place before an AJ. Thereafter,
on February 26, 1997, the AJ rendered her recommended decision finding
no discrimination. The agency subsequently adopted the AJ's recommended
decision. It is this agency decision which the appellant now appeals.
Appellant has been employed by the agency since 1984. Between the
years 1987 and 1993, appellant worked on occasion as a 204B, Acting
Supervisor. Throughout 1994, appellant was employed by the agency as
a Distribution/Window Clerk at the Silver Spring, Maryland Main Office.
Appellant's job entailed working the window for approximately five hours
a day and distributing mail for Carriers during the rest of her tour
of duty. In 1992-1993, prior to the events at issue, appellant engaged
in EEO activity.
For a period of time after January 5, 1994, appellant was on the Overtime
Desired List. During the period from January 1, 1994 through August 19,
1994 (date appellant left the Silver Spring Main Office), the record
indicates that appellant received 151 hours of overtime, while four other
clerks (C1, C2, C3 and C4) on the Overtime Desired List received 459,
249.5, 196, and 417 hours of overtime, respectively.
On February 4, 1994, appellant submitted a request for leave for December
26, 27, and 28, 1994. Her request slip was never returned to her.
However, appellant's leave request was ultimately approved.
In early March, 1994, appellant submitted a request for Limited Duty
to her supervisor (S1) who submitted it to the Officer-in-Charge (OIC).
Appellant submitted with the request a Non-Job Related Duty Status Report
signed by her doctor. The OIC responded by requesting additional medical
documentation showing the diagnosis and prognosis of appellant's injury.
Appellant never provided the documentation requested. However, appellant
avowed that she had submitted medical documentation to the Medical Unit
at Southern Maryland Division.<1> Nevertheless, appellant's request was
denied by the OIC because she failed to supply him with the requested
documentation.
Even though her request for Light Duty had not been approved, appellant
refused to work the window, on March 15, 1994. As a result of her refusal
to perform her duties, S1 disciplined appellant by issuing a Letter of
Warning, dated March 16, 1994, for failure to follow a direct order to
work the window. The Letter of Warning was subsequently rescinded and
removed from appellant's file in accordance with a grievance resolution.
Appellant again refused to work the window on March 21 and 22, 1994.
In response, appellant was disciplined and received a seven-day
Suspension, dated March 23, 1994, for failure to follow instructions.
On March 16, 1994, appellant was notified that she was not selected
for any of the 15 vacant positions as an EAS-16, Supervisor of Customer
Services for which she applied. Appellant's application was one of over
100 applications which were reviewed by the Candidate Evaluation Board
(Board). The Board consisted of three individuals, B1, (White male), B2,
(Black male) and B3 (Black female). Twenty-two applicants, including
appellant received a "B" rating and received no further consideration
by the Board. The individuals recommended for selection included eight
males, ten females, 16 Blacks, one White, and one Vietnamese. Four of
the recommended selectees had prior EEO activity.
On April 1, 1994, appellant requested and was denied a schedule change
which would have changed her day off so she could go to court about a
ticket she had received. Appellant's request was denied because she
failed to provide her supervisor with requested documentation regarding
the court appearance. Thereafter, appellant requested that she be
permitted to change her schedule so she could come in early and leave
early for the court appearance. That request was approved.
"Significant" Overtime
The AJ found that appellant established a prima facie case of race, sex
and reprisal discrimination. However, the AJ found that appellant failed
to discredit the agency's articulated legitimate explanation for its
employment action or otherwise prove discriminatory animus. Specifically,
appellant's supervisor explained that when appellant's Official Personnel
File arrived at the Silver Spring Main Office, she became aware that
appellant had removed her name from the Overtime Desired List at Wheaton
and did not want to work overtime there. Appellant's supervisor further
testified that because she overlooked the fact that appellant had
subsequently changed her overtime status, she had not called appellant
for overtime. Once appellant filed a grievance about this matter, her
supervisor became aware of her interest in working overtime and started
to assign her more hours. However, in early March, 1994, appellant
requested Light Duty and could no longer work overtime. In addition,
appellant's supervisor explained that the greatest need for overtime fell
Thursdays and Fridays; days that appellant was already scheduled to work.
The AJ noted that appellant did not dispute the agency's contentions,
nor present additional facts which would indicate race, sex or reprisal
discrimination.
Leave Request
The AJ found that appellant's leave request was granted by the agency.
Accordingly, the AJ found this allegation moot. The AJ also found that
appellant failed to establish a prima facie case of discrimination in
that she failed to show that she received adverse treatment with respect
to her leave request.
Light Duty
The AJ determined that appellant failed to establish a prima facie
case of race, sex or reprisal discrimination because appellant failed
to establish that she was treated differently from those individuals
who were similarly situated to her. In addition, the AJ noted that
the practice by management was to review all medical documentation
themselves before making a decision about an employees light duty status.
While the AJ determined that appellant's supervisors had the right to
be informed of the restrictions placed upon her work, they did not have
the right to access the actual medical documentation. Accordingly,
the AJ found the requirement by appellant's supervisor to review all
medical documentation to be in violation The Rehabilitation Act of 1973,
as amended, 29 U.S.C. �701 et seq. Nevertheless, the AJ found that
appellant had not alleged a Rehabilitation Act violation or provided any
evidence of how she may have been harmed by such violation. Moreover,
appellant failed to provide any evidence of pretext or motives based
upon race, sex or reprisal.
Disciplinary Actions
The AJ found that appellant failed to proffer sufficient evidence to
create a prima facie case of discrimination. Specifically, the AJ noted
that the undisputed evidence indicated that appellant was given direct
orders to work the window, that she had not been excused by management
from working the window and yet she refused her supervisors' orders
to work. She was then disciplined. In addition, there was no evidence
of more favorable treatment toward similarly situated individuals or
discriminatory animus of any kind.
Non-selection
The AJ found that appellant failed to present a prima facie case of race,
sex or reprisal discrimination. Specifically, the AJ noted that appellant
failed to present any evidence indicating that the Board members were
aware of appellant's race or prior EEO activity at the time that they
rated her. In addition, members of appellant's protected classes were
recommended and selected for the positions and appellant failed to show
that she was treated differently than a similarly situated employee,
outside her protected classes.
Schedule Change
The AJ found that appellant failed to establish a prima facie case of
discrimination. Specifically, the AJ noted that appellant's supervisor
had required documentation from other employees, outside appellant's
classes, on previous occasions. Moreover, the AJ noted that appellant
had been granted an alternative schedule change of arriving early and
leaving early for court. In addition, the record indicates that, on
prior occasions, appellant had been granted schedule changes by the same
supervisor. Accordingly, the AJ did not find the facts sufficient to
raise an inference of discrimination.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that, in all material respects, the AJ accurately set forth the
relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. We note that appellant failed to raise
any contention on appeal. Accordingly, we discern no basis upon which
to disturb the AJ's finding of no discrimination and hereby AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407.
All requests and arguments must bear proof of postmark and 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 filed on
the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction in
which your action would be filed. 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 (Z1092)
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:
9/9/99
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
1Appellant did not enter this documentation into the record.