Vanessa S. Beck, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 27, 2007
0120051239 (E.E.O.C. Feb. 27, 2007)

0120051239

02-27-2007

Vanessa S. Beck, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Vanessa S. Beck,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200512391

Agency Nos. 4F-907-0021-01

4F-907-0024-02

DECISION

Complainant filed timely appeals with this Commission from the agency's

September 29, 2004 revised final decision concerning the two formal

complaints of unlawful employment discrimination alleging violations

of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq., 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 appeal is accepted pursuant to 29 C.F.R. �

1614.405(a).

BACKGROUND

The record reflects that complainant sustained an on-the-job back

injury on July 8, 1983. Complainant's injury claims were accepted by

the Office of Workers' Compensation Programs (OWCP) on August 26, 1983.

Prior to her separation from agency employment, complainant had been in

nearly continuous non-pay, leave of absence status since December 1983.

A second on-the-job injury claim, for stress, was accepted on January 30,

1986.

The record reflects that from 1985 to 1996, complainant was carried

on the rolls by the OWCP. In 1996, the OWCP terminated complainant's

benefits based on a determination that complainant did not have any

employment-related residuals. The record reflects that after complainant

filed an appeal from the OWCP's determination to terminate her benefits,

a hearing was held on July 16, 1996, which resulted in an affirmance of

the OWCP determination.

After complainant received a Notice of Proposed Separation from the agency

in 2000, she filed a grievance pursuant to the applicable negotiated

collective bargaining agreement. In a Step 3 decision, the parties agreed

that the Notice of Proposed Separation was defective because it contained

no appeal rights. The agency rescinded the Notice of Proposed Separation

and reinstated complainant. The record reflects that complainant was

required to initiate a light duty request pursuant to Article 13 of

the National Agreement, and provide the necessary medical documentation

articulating her medical restrictions. Following the Step 3 agreement,

complainant was provided with a "Light Duty Request for Non-Job Related

Injury/Illness" form, and was requested to submit the document to her

treating physician for the purpose of providing medical limitations for

her return to work.

On August 28, 2001, the agency issued complainant another Notice of

Separation based on her absence in a Leave Without Pay (LWOP) status

for more than one full year. In its Notice, the agency stated that

on September 7, 2001, complainant submitted a brief note from her

doctor stating that he believed complainant could return to some

type of unidentified light duty. On September 7, 2001, complainant

submitted additional medical documentation, but management found it to be

incomplete on the grounds that it did not articulate complainant's medical

restrictions. The agency further determined that the documentation did

not support complainant's recovery within a reasonable time.

The agency concluded that complainant should be separated from agency

employment effective November 2, 2001 based on three factors. First,

the agency stated that complainant had been carried in a LWOP status and

had performed no work for over ten years. Second, the agency indicated

that complainant performed no constructive work and the agency was

unable to hire a replacement due to her continued placement on its rolls.

Third, the agency stated that after over ten years of absence complainant

apparently had still not recovered fully and would be unable to perform

the full duties of her position as a letter carrier.

In Agency No. 4F-907-0021-01 (hereinafter referred to "Complaint

1"), filed on December 19, 2000, complainant claimed that she was

discriminated against on the bases of race (African-American), national

origin (African-American), sex (female), disability (unspecified),

age (D.O.B. 06/08/45), and in reprisal for prior EEO activity when the

agency removed her from employment, thereby denying accommodations for

her unspecified disabilities.

The agency issued a final decision on January 23, 2001, dismissing

Complaint 1 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of

untimely EEO Counselor contact. The Commission reversed the agency's

dismissal and remanded Complaint 1 to the agency after finding that

complainant's initial EEO Counselor contact was timely. Beck v. United

States Postal Service, EEOC Appeal No. 01A12413 (July 12, 2002).

In Agency No. 4F-907-0024-02 (hereinafter referred to "Complaint 2"),

complainant filed a formal complaint on March 29, 2002, claiming that

she was discriminated against on the bases of race, national origin,

sex, disability and in reprisal for prior EEO activity when:

(1) from April 1995 to November 2, 2001 (date of her removal), she

was placed involuntarily in a LWOP status because management failed to

accommodate her medical restrictions;

(2) on August 28, 2001, she was issued a Notice of Proposed Separation

after she allegedly advised management that her doctor had not received

appropriate forms and management allegedly failed to respond to her

doctor's request to be assigned;

(3) on October 27, 2001, she was issued a Notice of Separation effective

November 2, 2001;

(4) on November 16, 2001, management inadequately addressed inquiries

from complainant's doctor; and

(5) on November 26, 2001, she received a copy of Standard Form 8 which

falsely stated that she was removed for Absence Without Leave (AWOL).

The agency consolidated Complaints 1 and 2 for processing. At the

conclusion of the investigation of Complaints 1 and 2, complainant

received a copy of the investigative report and requested a hearing

before an EEOC Administrative Judge (AJ).

On July 27, 2004, the AJ issued an Order for Additional Information,

allowing the parties to provide responses to specific questions such as

identifying comparative individuals. In his Order, the AJ instructed

the parties to respond by August 13, 2004, and informed the parties that

failure to comply with his Order could result in sanctions pursuant to

29 C.F.R. ��� 1614.107(a)(7); 109(b); 109(f)(3). The record reflects

that neither party responded to the AJ's Order by August 13, 2004.

On August 17, 2004, as a sanction, the AJ issued a decision remanding the

complaints to the agency for the issuance of a final agency decision.2

The agency issued a final decision dated September 24, 2004 and a revised

final decision dated September 29, 2004, that is the subject of the

instant appeal.3 Therein, the agency found that complainant failed

to establish a prima facie case of race, sex, national origin, age,

disability and reprisal discrimination.4 The agency further found that

even assuming arguendo complainant established a prima facie case of race,

sex, national origin, age and disability and reprisal discrimination,

management articulated legitimate, nondiscriminatory reasons for its

actions which complainant failed to show was pretextual.

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. See

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

As a preliminary matter, the Commission notes that the agency did

not expressly address each of complainant's five claims identified in

Complaint 2. However, the Commission determines that both Complaints

1 and 2 involve the same issues, are inextricably intertwined, and

that the agency has in essence addressed all the matters raised in the

subject complaints.

The Commission next determines that the agency articulated legitimate,

nondiscriminatory reasons for its actions. A review of the record

reflects that complainant was separated from agency employment because

she did not report to duty for over ten years. In an affidavit from

the Manager of Injury Compensation (Manager), the Manager stated that

she worked with complainant concerning her OWCP claims. The Manager

further stated that during the relevant time, there was "no record in

our file that reveals that a request to return to work or a request for

accommodation had been made by the complainant." The Manager stated that

in March 1995, the injury office received complainant's medical report

from her physician. The Manager stated that the report indicated that

complainant's limitations/restrictions were as follows: limitations on

her ability to respond to appropriately to persons in authority; she

was suspicious and guarded; could not interact in a public situation;

and reacts to criticism with anger and resentment. The Manager stated

that complainant did not receive a limited duty job offer during the

relevant time because she continued to receive compensation benefits

until April 12, 1995. The Manager stated that in April 1995, the OWCP

terminated complainant's compensation benefits based on the findings of

its physicians that the work-related aspects of complainant's disability

had ceased.

Further, the Manager stated that on April 26, 1995, the OWCP informed

the former Postmaster that complainant's benefits had been terminated

and advised him of the options for complainant. The Manager stated that

the options discussed were: "return to full duty, request work according

to Article 13, and the option to retire or resign." The Manager stated

that because complainant had been off work for more than twenty-one days,

her medical status had to be reviewed by a medical officer. The Manager

stated that on May 18, 1995, complainant's physician responded to an

inquiry from the former Postmaster concerning complainant's ability

to work. The Manager stated that while on June 19, 1995, the former

Postmaster sent complainant a letter inquiring her intentions to return

to work, there was "no evidence in the IC file that the complainant ever

contacted [the Postmaster] regarding reemployment." The Manager stated

that it was complainant's responsibility to request light duty per the

language in Article 13 "Assignment of Ill or Injured Regular Workforce

Employees" of the National Agreement between the agency and union.

The Manager stated that "from the point where the complainant's claim

was terminated, there is sufficient evidence in file that the complainant

continued to dispute the denial of her claim and that she had requested a

hearing." The Manager stated that following the hearing held on July 16,

1996, the OWCP decision terminate compensation was upheld. With respect

to complainant's claim that the agency failed to accommodate her and

forced her into an LWOP status from 1995 to 2001, the Manager stated "it

is our position, that had the complainant provided medical documentation

from her physician stating her restrictions and a request to return to

work, management would have advised her if work were available."

The record also contains an affidavit from a former Officer-in-Charge

(OIC). Therein, OIC stated that from July 2001 to January 2002, he

was responsible for all employees, including complainant, at the Bell

Post Office. OIC further stated that he was concerned with complainant

"in particular because she was a long-term absentee who had been

on Leave Without Pay for well over one year." OIC stated that he

discussed a possible removal action on complainant with the Manager,

Customer Services. OIC stated "our reason for considering the action was

"[complainant's] long term absence without pay, the absence of sufficient

documentation to support her absence, and her apparent unwillingness

to return to work." OIC stated that while complainant had been absent

for many years, her records indicated that she was capable of reporting

to duty in 1994 and 1995 "but that she declined to do so." OIC stated

that the documentation he relied on did not indicate that complainant

was disabled in any way. Specifically, OIC stated that he reviewed

complainant's 1994 psychiatric evaluation and 1994 orthopedic evaluation.

OIC stated that in page 9 of the psychiatric evaluation stated that

complainant "needed no work restrictions on a psychiatric basis."

OIC stated that in page 3 of the same evaluation, the psychiatrist stated

that complainant "had stated that she would not return to work until she

could be assured that the people at the post office would not continue

their violations." OIC stated that in the orthopedic evaluation,

the orthopedist stated that complainant "was not suffering from any

condition that would preclude her from performing her work." OIC stated

that despite the two evaluations, complainant did not report to duty.

Further, OIC stated that recently, a prior OIC attempted to aid

complainant's return to duty by sending a light duty request form

to her representation. OIC stated that this form is commonly used by

employees to request modified duties and to provide documentation of the

need for modified duties. OIC stated that complainant never returned

the light duty request form to either the prior OIC or himself. OIC

stated that while he was aware that complainant's physician recommended

that complainant be detailed to a different facility, there was no

documentation to support the need for the detail. OIC stated "there

certainly was no information provided by [complainant] or her physician

that would support a claim of disability. If anything, the tenor of

their correspondence was that she could work with some limitations.

Those limitations were never disclosed, with the exception of a possible

detail to another facility."

OIC stated that on August 29, 2001, the Manager, Customer Services issued

complainant a Notice of Proposed Separation after consulting with him.

OIC further stated that in the notice, the basis for complainant's

separation was her absence from work for over a year in a LWOP status

pursuant to Section 365.34 of the Employee Labor and Relations Manual

(ELM). OIC stated that on September 10, 2001, he received a notice from

complainant's physician stating that complainant could return to work

"but recommending light duty and a detail to another location for her."

OIC stated that the physician again did not provide any information

as to what duties complainant could perform or "any rationale as to

why she needed modification to her duties." OIC stated that because

complainant filed a grievance, he was asked to defer the effective date

of complainant's separation from agency employment until her grievance

was heard by the Dispute Resolution Team. OIC stated that after he

learned that the DRT found the separation action was justified by the

facts, he sent complainant a Notice of Separation dated October 23,

2001 with an effective date of November 2, 2001.

OIC stated that prior to the effective date of complainant's separation,

he received documentation from complainant's physician. OIC indicated

that the physician stated that complainant "needed 'light duty' but

provided no description of what her restrictions were." OIC stated that

he received another letter from complainant's physician after complainant

was separated from agency employment. OIC stated "I responded to him

that [complainant] was no longer employed and I would not be responding

to him any longer." Furthermore, OIC stated that complainant and her

physician had "adequate opportunity to document her need for light duty

and they had not done so."

The record contains an affidavit from the Postmaster. Therein, the

Postmaster stated that while he never supervised complainant, she had

not been to the facility for "at least two years." The Postmaster stated

that on December 22, 1998, he sent complainant a "Status of Employment"

form letter. Specifically, the Postmaster stated that the Injury Office

"provides the associate post offices with the necessary dates and

information the letters are sent to employees that are on the rolls of

a post office but have failed to perform their duties by not reporting

to the post office for an extended period of time." Furthermore, the

Postmaster stated that he did not discriminate against complainant based

on her race, national origin, sex, age disability or reprisal.

As an initial matter, the Commission discerns no clear error in the AJ's

decision to sanction the parties by dismissing the hearing request and

remanding the case to the agency for issuance of a final decision and

declines to overturn it. After a careful review of the record, including

all statements submitted on appeal, finds that complainant has not shown,

by a preponderance of the evidence, that the agency's articulated reasons,

as discussed above, were a pretext for discrimination. Accordingly, the

agency's final decision finding no discrimination concerning Complaints

1 and 2 was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 27, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2 The record reflects that both parties submitted their responses after

the August 13, 2004 deadline.

3 In its revised final decision, the agency added a footnote stating that

it submitted its response to the AJ's Order for additional information

by mail on August 13, 2004 and again by facsimile on August 20, 2004.

4 The Commission presumes for the purposes of analysis only, and without

so finding, that complainant is an individual with a disability.

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0120051239

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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