0120103767
01-27-2011
Tara C. Sturges, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Tara C. Sturges,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120103767
Agency No. 4K230011503
DECISION
On September 13, 2010, Complainant filed an appeal from the Agency's
August 12, 2010, final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the
appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission affirms the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Distribution Clerk at the Agency's Portsmouth, Virginia facility.
On June 27, 2003, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the basis of disability (knee
condition), race (African American) and sex when the Agency failed to pay
her out-of-schedule pay while she worked as a 204B acting supervisor.
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). Complainant
requested a hearing and an AJ held a hearing on the matter.
The AJ found that the evidence established that Complainant was
not entitled to out-of-schedule pay because she was assigned to a
limited duty position and the union contract specifically provided
that clerks or carriers in limited duty positions were not entitled to
out-of-schedule pay. The AJ found that Complainant failed to prove that
the Agency's reasons for its actions were a pretext for discrimination.
The Agency fully adopted the AJ's decision on July 25, 2006. Thereafter,
Complainant filed an appeal with the Commission.
In Sturges v. USPS, Appeal No. 0120064940 (April 9, 2009), the Commission
addressed Complainant's appeal. In that decision, the Commission affirmed
the finding of no discrimination based on race and sex, and determined
that the Agency produced sufficient evidence that other similarly situated
204B supervisors also did not receive out-of-schedule pay. The decision
noted that a comparator named by Complainant received out-of-schedule
pay pursuant to a settlement agreement and did not work under the same
Officer-in-Charge (OIC). The decision found that Complainant failed to
prove that the Agency's articulated reasons for its actions were pretext
for race or sex discrimination.
With respect to Complainant's disability discrimination claims, Appeal
No. 0120064940 vacated the finding of no discrimination on the basis
of disability and remanded that basis to an AJ for a determination of
whether the claims were part of the Walker v. USPS, Appeal No. 0720060005
(March 18, 2008), class action. In particular, the AJ was directed to
determine whether Complainant had the employee status codes of LDC 69, RD,
or RC during the relevant time period. The decision stated that if the AJ
did not subsume Complainant's complaint into the Walker class action, the
Agency should issue a final order with appeal rights to the Commission.
On July 19, 2010, a decision was issued by an AJ finding that
Complainant's disability claims should not be subsumed into the
Walker class action, and directing the Agency to issue a decision on
the matter. The Agency issued a final decision on July 12, 2010. The
decision concluded that Complainant failed to prove that the Agency
subjected her to disability discrimination as alleged. It is from this
decision Complainant filed the instant appeal.
The Agency again stated that the responsible management official relied
on his interpretation of the collective bargaining agreement in denying
Complainant out-of-schedule pay. The Agency conceded that Complainant
was paid out-of-schedule pay on some dates with a previous Postmaster/OIC,
but that the current official did not believe the contract allowed it. In
its decision, the Agency found that even assuming Complainant was a
person with a disability, she did not show by a preponderance of the
evidence that the Agency's reasons for it actions were a pretext for
discrimination. The Agency further noted that the current Postmaster
averred that the comparator named by Complainant did not receive
out-of-schedule pay. Complainant did produce any evidence to the
contrary.
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"). We note
that Complainant did not make any arguments on appeal.
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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the Agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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 Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Upon review of the record, the Commission finds that Complainant
has failed to show by a preponderance of the record, that the Agency
discriminated against her based on her disability. Even assuming that
she is a person with a disability, Complainant has not proven, by a
preponderance of the evidence, that the responsible Agency official's
interpretation of the collective bargaining agreement was a pretext for
discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final Agency 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
January 27, 2011
__________________
Date
2
0120103767
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103767