0120131610
08-30-2013
Terry L. Scott, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Terry L. Scott,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120131610
Agency No. 1G-336-0030-12
DECISION
On March 18, 2013, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's February 14, 2013, final Agency decision (FAD) 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Tampa Processing & Distribution Center in Tampa, Florida.
On March 23, 2012, Complainant filed an EEO complaint. In Scott v. United States Postal Service, EEOC Appeal No. 0120122383 (Sep. 20, 2012), the EEOC defined Complainant's complaint as alleging that she was discriminated against based on her disability and reprisal for prior EEO activity when:
The Agency subjected her to a hostile work environment by placing her in a different position, changing her reporting time, repeatedly trying to coerce her to apply for light duty, and scheduling her as a light duty employee.
The EEOC ordered the Agency to investigate the complaint. In the investigation Complainant stated that her disability was non-paralytic conditions which permanently affect her feet and legs and her standing and walking. She explained that she was alleging reprisal for EEO activity in connection with prior complaint 1G-336-0047-11. A review of the record in that case, which the EEOC has because Complainant filed an appeal thereon, shows it was an ADEA claim. In the investigation of the complaint before us Complainant also contended that she made a request for reasonable accommodation for her disability which was not properly processed. As the Agency also investigated that contention, we will adjudicate it.1
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). In accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). The Agency found no discrimination.
The Agency found that Complainant was not an individual with a disability, but assuming for the sake of analysis that she was she never requested light duty,2 was not placed thereon, and was not improperly refused reasonable accommodation because she never advised management what accommodation she needed. It found that Complainant did not establish a prima facie case of reprisal discrimination because she was not subjected to an adverse action.
The Agency found that assuming for the sake of argument that Complainant made out prima facie cases of disability and reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the Agency found that the Acting Manager, In-Plant Support, explained as follows: Complainant was previously a Part-Time Regular (PTR) employee. Pursuant to the collective bargaining agreement (CBA) that took effect in the summer of 2011, she was converted to a Non-Traditional Full-Time (NTFT) employee and consequently became unassigned.3 Around January 2012 the Acting Manager made lists of all unassigned employees and residual positions for the union and management and around that time Complainant indicated she could not physically perform the duties of her potential new assignment in Automation. Because Complainant did not have any work restrictions on file, she was asked to provide medical documentation, which she never did.
The Agency noted in the FAD that the Acting Manager further explained as follows: Complainant advised she was hired as a Manual Clerk and that was the only position she should be given. Bids were usually posted monthly, but Complainant was not a successful bidder on any of them. Unassigned employees who do not obtain a position are assigned to a residual bid based on seniority and veteran status, and with those at the lowest rungs did not even get residual bids. As a result of this process, Complainant was awarded bid 70609136 on February 22, 2012, an Automation assignment. (The bid was effective February 25, 2012, and had a start time of 11 PM. Complainant's previous start time was at 8 PM). Because the Acting Manager never received medical documentation, Complainant was placed in the above bid. The Acting Manager did not know what duties Complainant claimed she could not perform. Also, she was not aware of any physical impairment or condition of Complainant.
The record reflects that on February 26, 2012, Complainant vaguely wrote the Lead Plant Manager that she was a disabled veteran with a 10 point preference, and was protected under the Americans with Disabilities Act. He replied to Complainant on February 28, 2012, that if she would like to request light duty to do so in writing to him with supporting medical documentation containing restrictions she may have. In the FAD, the Agency noted the Lead Plant Manager's statement that he did not tell Complainant to request light duty, that he heard nothing further from her on the matter, and he was not aware of Complainant's alleged medical impairment. The Agency noted in the FAD the statement by the Supervisor of Distribution Operations that Complainant was not placed on light duty.
The Agency found that Complainant was not forced to apply for light duty, was not placed thereon, that her hours and duties changed because she failed to successfully bid into another position so she was placed in a residual bid, and she did not request reasonable accommodation. The Agency found that Complainant failed to prove pretext.
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 her disparate treatment claims, 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, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. 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 Products, Inc., 530 U.S. 133 (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, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).4
On appeal, Complainant makes no comment. Based upon a review of the record, and our previous finding in EEOC Appeal No. 0120122383, we find that because the CBA eliminated PTR positions, Complainant was converted from a PTR to a NTFT, resulting in her becoming an unassigned employee. Because Complainant did not successfully bid for a job, based on her seniority and veteran status she was assigned to bid 70609136, which changed her duties and reporting time. The Agency did not try to coerce Complainant to apply for light duty, rather it made this suggestion since she expressed that the Automation job would be unsuitable because of her medical condition. The record shows Complainant was never placed on light duty. She has not demonstrated pretext.
We find that Complainant requested reasonable accommodation by informing management that the Automation position was not physically suitable for her. But when the Agency asked her to provide medical documentation on her restrictions so it could determine what duties she could perform, she did not do so. Given this, we find that Complainant has not shown she was improperly denied reasonable accommodation. We add that there is no indication in the record that after Complainant was placed in the Automation job that she had problems performing its duties.
The FAD is AFFIRMED.
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
August 30, 2013
__________________
Date
1 On remand from the EEOC's order in EEOC Appeal No. 0120122383, the Agency defined Complainant's complaint as being involuntarily placed in a light duty assignment. Nevertheless, the Agency's investigation was broader, and there is sufficient information in the record to adjudicate all of Complainant's claims, as recounted above.
2 Complainant stated that she did not request light duty at any time.
3 The Agency converted all PTR Mail Processing Clerks in the Tampa P&DC, including Complainant, to NTFTs because a new CBA eliminated the category of PTR in the clerk craft. See Scott v. United States Postal Service, EEOC Appeal No. 0120122383 (Sep. 20, 2012). Complainant's conversion was found not to be discriminatory. Id.
4 For purposes of analysis, we assume without finding that Complainant is an individual with a disability.
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0120131610
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120131610