0120120038
08-06-2013
Tracy C. McDonald, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Tracy C. McDonald,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120120038
Agency No. 4H-370-0044-11
DECISION
On September 23, 2011, Complainant filed an appeal from the Agency's August 19, 2011 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 accepts the appeal 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 Data Conversion Operator at the Agency's Chattanooga Remote Encoding Center (REC) in Tennessee.
In April 2009, the Agency closed the Chattanooga REC. A PS Form 50 reflects that, effective August 15, 2009, the Agency involuntarily reassigned Complainant to the Dyersburg Post Office as a Sales, Service, and Distribution Associate. Complainant never reported to the Dyersburg position.
In March 2010, Complainant submitted an application for disability retirement to the Office of Personnel Management (OPM). Complainant's application contained a February 3, 2010 Supervisor's Statement from the Postmaster of the Dyersburg Post Office (P1). Among other things, P1 stated that Complainant had entered into the Dyersburg position on May 1, 2009, but had never reported to work even though the position was available. In October 2010, OPM determined that Complainant was not entitled to disability retirement.
In November 2010, Complainant obtained a copy of the Supervisor's Statement. In December 2010, the Union President (UP) wrote a "To Whom It May Concern" letter regarding Complainant and the Dyersburg position. Among other things, UP stated that the former Postmaster of the Chattanooga REC (P2) told him in August 2009 that: (1) the Agency planned to assign some former REC employees to other offices so that it could completely close out the records for the REC; (2) the new positions were to be "paper only" positions and employees were not to report to them; and (3) this decision was coming from the Tennessee District Office. In addition, UP stated that at no time during this whole process had there been any attempt to have Complainant assume the Dyersburg position and the Union was never informed of any active positions in Dyersburg.
The record contains no evidence that, prior to January 2011, the Agency notified Complainant verbally or in writing that she was supposed to report to the Dyersburg position. In a January 2011 letter, P1 informed Complainant that she was scheduled for an investigative interview in February 2011 concerning her failure to report to work as assigned. Despite the letter, the Agency never conducted an investigative interview.
Subsequently, OPM determined that Complainant was entitled to disability retirement. A PS Form 50 reflects that Complainant's last day in a pay status was April 16, 2009 and that Complainant retired on disability from the Agency effective February 14, 2011.
On February 28, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when, in November 2010, she became aware that a position that met her accommodation requirements was available and deliberately kept from her.
Complainant, P2, the Tennessee District Office's Human Resources Manager (HRM), the Tennessee District Office's Complement Coordinator (CC), and P1 provided affidavit testimony regarding the Dyersburg position.
Complainant testified that UP, based on information he received from P2, told her not to report to the position and said the decision had come from the Tennessee District Office. In addition, Complainant testified that UP, based on information he received from the Union in Dyersburg, told her that there was no job available.
P2 testified that UP asked him about the position after Complainant received the PS Form 50 for the involuntary reassignment. In addition, P2 testified that HRM informed him via email that the Agency had to place Complainant somewhere but she was not to report.
HRM testified that the Agency created a paper position for Complainant because it had to close out the finance number for the Chattanooga REC and it had to have a place to put her on paper until her retirement was approved. In addition, HRM testified that, because it was a paper position, he did not think there was an expectation that Complainant would report to it. Further, HRM testified that P1 was informed about the paper position created for Complainant, but he did not remember if he talked to P1 or if CC talked to P1.
CC testified that the position created for Complainant was not a paper position. In addition, CC testified that he never told P1 that the position was a paper position.
P1 testified that no one told her that the position was a paper position. In addition, P1 testified that she had expected Complainant to report to duty.
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 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 disability discrimination as alleged. In addition to the Dyersburg position, the decision addressed Complainant's allegations that the Agency discriminated against her by not reassigning her to positions in Sevierville, Tennessee and Savannah, Georgia. We note that the decision may have included those positions in its analysis because Complainant provided some testimonial and documentary evidence pertaining to those positions.
CONTENTIONS ON APPEAL
On appeal,1 Complainant clarified that the instant complaint involved only the Agency's actions related to the Dyersburg position and not those related to the Sevierville, Tennessee or Savannah, Georgia positions - positions that were the subject of other EEO complaints. Among other things, Complainant argued that the Supervisor's Statement to OPM and the January 2011 letter show that the Dyersburg position was an actual position and not, as the Agency represented, a paper position that she did not have to report to. Complainant stated, "Now that I know there is a position, an accommodated position, I want it and I am being denied and it is not right. There is no reason to deny a person with disabilities an available accommodated position!"
ANALYSIS AND FINDINGS
Standard of Review
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 (EEO MD-110), Ch. 9, � VI.A. (Nov. 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").
New Evidence Submitted by Complainant on Appeal
As part of her statement in support of the appeal, Complainant submitted new evidence that was not previously part of the record. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. EEO MD-110, Ch. 9, � IV.A.3. Here, Complainant has not made such a showing. The bulk of the new evidence is dated earlier than June 4, 2011 - the date the Agency completed its investigation of Complainant's complaint. Thus, it appears that the evidence was reasonably available prior to or during the investigation. Accordingly, we decline to consider any new evidence submitted by Complainant on appeal that was dated earlier than June 4, 2011.
Reasonable Accommodation
Complainant alleged that the Agency failed to reasonably accommodate her disability when it deliberately kept her from working the Dyersburg position. As an initial matter, we assume, without so finding, that Complainant is a qualified individual with a disability. Under the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p); Appendix. In reassignment cases, a complainant has an evidentiary burden to establish that it is more likely than not that there were vacancies during the relevant time period into which she could have been reassigned. See Hampton v. U.S. Postal Serv.,
EEOC Appeal No. 01986308 (Aug. 1, 2002).
Upon review, we find that Complainant failed to establish, by a preponderance of the record evidence, that the Dyersburg position was a vacant, funded position into which she could have been reassigned. The following is consistent with a finding that the position was a paper position: (a) the testimony of HRM and P2 that the position was a paper position and that Complainant was not expected to report to it; (b) Complainant's testimony and UP's December 2010 letter indicating that, in or around August 2009, P2 told UP that the position was a paper position and that Complainant did not need to report to it; (c) Complainant's testimony and UP's December 2011 letter indicating that the Union was unaware that the position was active or available; (d) the fact that, for almost a year and a half after the effective date of Complainant's involuntary reassignment (August 2009 to January 2011), the Agency did not notify her that she was required to report to the position; and (e) the fact that the Agency did not discipline Complainant for not reporting to the position.
While the record contains some evidence - namely, the Supervisor's Statement to OPM submitted by P1, the January 2011 letter issued by P1, P1's testimony, and CC's testimony - that the position was an actual position, we find, as explained above, that the record as a whole tends to show that the position was a paper position. We acknowledge that the record contains conflicting testimonial evidence from management officials about the nature of the position. Specifically, HRM and P2 testified that it was a paper position while P1 and CC testified that it was an actual position. A hearing "provides the parties with a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." EEO MD-110, Ch. 7, � I. Had Complainant requested a hearing, she would have had the opportunity to cross-examine HRM, P2, P1, and CC, and the AJ could have made credibility determinations based on both Complainant's and management's testimony. As Complainant requested an Agency final decision, we do not have the benefit of an AJ's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. We are not persuaded, based on the record before us, that Complainant established that the Dyersburg position was a vacant, funded position into which she could have been reassigned.
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 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
__8/6/13________________
Date
1 Complainant argued that the Agency denied her access to mediation in the instant complaint. The Commission notes "an agency decision not to engage in ADR, or not to make ADR available for a particular case . . . cannot be made the subject of an EEO complaint." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 3, � II.A.4 (Nov. 9, 1999).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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