0120091490
02-03-2011
Vivian J. Freeman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Vivian J. Freeman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120091490
Agency No. 4H335008508
DECISION
On February 6, 2009, Complainant filed an appeal from the Agency's January
6, 2009, 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. 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.
ISSUE PRESENTED
The issue presented in this appeal is whether the Agency correctly
determined that it did not discriminate against Complainant under the
Rehabilitation Act as she alleged.
BACKGROUND
On May 30, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of disability (shoulder/arm)
when: (a) since March 7, 2008, the Agency has not responded to her
request for reassignment to the clerk craft; and, as amended, in reprisal
for prior protected EEO activity, when: (b) on July 21, 2008, she was
given an investigative interview and subsequently, on July 24, 2008,
she was issued a Letter of Warning (LOW1); (c) on or about July 21,
2008, she was charged Absent Without Official Leave (AWOL); and (d)
on August 26, 2008, she was issued a LOW (LOW2).1
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the Report of Investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
On November 28, 2008, Complainant requested that the Agency issue a FAD,
and, in accordance with Complainant's request, the Agency issued a FAD
pursuant to 29 C.F.R. � 1614.110(b). The FAD concluded that Complainant
failed to prove that the Agency subjected her to discrimination as
alleged.
At the time of the events giving rise to this complaint, Complainant was
a Rural Carrier Associate-Modified (RCA) holding a non-career position
at the Agency's Dade City Post Office located in Dade City, Florida.
Complainant began her service with the Agency in May 2005, as a RCA.
On September 30, 2006, she was injured on the job and diagnosed with left
shoulder tendonitis, thus prohibiting her from performing the essential
duties of her RCA position, and when she returned to work, the Agency
provided her with various modified job assignments. After she reached
Maximum Medical Improvement (MMI), on February 4, 2008, the Agency
offered her a "Limited Duty Job Offer" within the RCA craft; however,
she rejected the job offer, and the Agency continued to assign her duties
within her medical restrictions and limitations.
The gravamen of Complainant's complaint is her insistence that,
notwithstanding her non-career assignment to the RCA craft, after her
injury and upon reaching MMI, she was entitled to receive a Rehabilitation
Job Offer, that is, a reassignment into another craft, specifically to
be reassigned to a career position in the clerk craft. In claim (a),
based on disability, she charged that the Manager, Health and Resources
(MHR) did not send her request for reassignment to Headquarters (HQ),
and she had not received an answer since March 7, 2008. She asserted
that only managers at HQ could grant her request to be converted from
non-career to career status.
In claims (b) through (d) based on retaliation, Complainant identified
three events that took place in July - August 2008, at her facility and
claimed that they were taken in reprisal for her reassignment request,
i.e., claim (a). First, in claim (b), after an investigative interview,
Complainant received LOW1 from the Supervisor, Customer Services (SCS1),
on July 24, 2008, because of attendance irregularities, about which she
had been counseled on four occasions. The record shows that Complainant
had accrued many unscheduled absences and late arrivals, not including
those taken under the Family and Medical Leave Act (FMLA). 2 With
regard to claim (c), Complainant objected when SCS1 charged her AWOL
when she left work without permission after the investigative interview.
In her final claim (d), Complainant alleged reprisal when SCS2 issued
LOW2 to her for unacceptable behavior/failure to follow directions and
perform an assignment. Complainant asserted that the work assigned was a
"clerk's duties and she was not being paid clerk's pay."
In its analysis, the Agency described its reasons for its actions,
asserting they were non-discriminatory and legitimate. The Agency
allowed that Complainant was an individual with a disability based on her
10-pound lifting restriction during the first part of 2008. Addressing
her contention that MHR failed to send her request for transfer to HQ
(claim (a)), the record shows that MHR had transmitted her request.
In a response dated May 16, 2008, HQ directed that the Agency continue
to accommodate Complainant by providing limited duty assignments and that
her request for transfer would be addressed during or after the National
Reassessment Process, scheduled to conclude in September 2008. Also,
the Postmaster (PM) stated that he notified Complainant in February
2008, that to transfer, she must pass the appropriate examinations,
qualify for the position in question, apply for it, and be selected.
He also informed her that conversion to a career position based on her
limited duty status was inconsistent with the labor agreement and the
pertinent Postal Service policies.
Regarding claim (b), the Agency, through SCS1, explained that she
issued LOW1 to Complainant for violations of the Agency's attendance
requirements; LOW1 cited specific incidents in support of the charge. In
regard to claim (c), the record indicates that, after Complainant met with
SCS1 on July 21, 2008, Complainant became upset and left the facility,
without notice or permission from management. Lastly concerning claim
(d), SCS2 stated that, on August 13-14, 2008, she instructed Complainant
to make changes to the P.O. Box section edit book. Complainant refused,
stating that the assignment was a clerk's job, she was not paid as a
clerk (at a higher wage), and it was not within her limited duty job.
Because Complainant continued to refuse her instructions, SCS2 issued LOW2
to Complainant on August 16, 2008, for Unsatisfactory Performance/Failure
to Follow Instructions.
CONTENTIONS ON APPEAL
Complainant filed timely statement in support of her appeal. She
reiterated her contentions that, upon reaching MMI, she was entitled
to a permanent rehabilitation assignment consisting of reassignment
to a clerk's position and a change to career status. She argued that
she had been denied opportunities and was not afforded a reassignment,
merely assigned as a modified-RCA from a RCA. She referred to various
parts of the Agency's manual, concluding that because she was not in a
permanent rehabilitation position, she did not have rights of promotion
and advancement. In addition, she refers to other statutes (or their
regulations), e.g., the Civil Service Reform Act, the Merit Systems
Protection Board, the Federal Employees Compensation Act, the Equal Pay
Act, and other to support her position.
The Agency did not provide a brief or comments in opposition to
Complainant's appeal.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, the
Agency's decision is subject to de novo review by the Commission.
29 C.F.R. �� 1614.110(a) and 1614.405(a); see Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (November 9, 1999), Chapter
9, � VI.A. (the Commission must examine the facts of the record, review
the documents, statements, and testimony of record, including 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).
Legal Framework
Complainant alleged discrimination based on disability and in reprisal
for prior protected EEO activity. Generally, claims of disparate
treatment are examined under the tripartite analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For purposes of
further analysis, we will assume, without finding, that Complainant
is an individual with a disability, that she is entitled to coverage
under the Rehabilitation Act, and that she established a prima facie
case based on disability and retaliation under the Rehabilitation Act.
In the next step, the burden shifts to the Agency to articulate
legitimate, nondiscriminatory reasons for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency
is successful, the final burden returns to the Complainant to demonstrate
by a preponderance of the evidence that the Agency's reasons for its
actions were a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by
a preponderance of the evidence that the Agency acted on the basis of
a prohibited reason.3 St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
715-716 (1983).
Legal Analysis
In response to Complainant's prima facie case, the Agency articulated
the reasons for its actions. Specifically, the Agency presented evidence,
for claim (a), that Complainant's request was sent to HQ and a response
received in mid-May; thus, her factual premise for this claim was
mistaken. Further, although not the claim stated, the Agency addressed
its ability to fulfill her request and determine it was not possible.
In response to her claim based on reprisal in claims (b) - (d), the
Agency presented its reasons for the disciplinary actions taken against
Complainant, that is, LOW1 was based on her violations and disregard of
attendance requirement; the charge of AWOL was for the portion of the
day she left work without notice or permission; and LOW2 was issued
when she was insubordinate and refused to perform an assigned task.
We find that the Agency has articulated legitimate, nondiscriminatory
explanations for its action.
The ultimate burden of proof returns to Complainant who must demonstrate
that the Agency's articulated reasons are pretext. In regard to claim
(a), the alleged failure to transmit her request to Headquarters or
receive an answer, the record shows that her request was sent, and
that a response was provided. Complainant's transfer request could not
be accomplished under extant Agency rules and Collective Bargaining
Agreements. Complainant has not shown that the Agency's explanation was
a pretext or that the failure to transfer her was due to her disability.
To the extent that Complainant maintained that she was denied a reasonable
accommodation, we would also find no discrimination. Complainant has not
shown that she was not entitled to a transfer to a higher-level position,
with a higher wage and career status, as a reasonable accommodation,
when her present assignment provided her with light or limited duty work
that complied with her medical restrictions. Moreover, Complainant did
not show that funded vacancies existed in the clerk craft for which she
was qualified.
In regard to the three disciplinary actions taken, SCS1 and SCS2 asserted
that their actions were not based on reprisal for Complainant's prior EEO
activity and that they were taken in response to her own actions, that is,
her attendance record, leaving the facility without notice or permission,
and refusing to perform an assignment. Although Complainant contended
that her prior EEO activity was the reason the Agency took these actions,
she claimed that CSC2 had given her an "official discussion and verbally
reprimanded [her] for talking to the Employee relations department,"
but offered no documentary or other evidence to support her contention.
In addition, she made very general allegations against unidentified
managers that she maintained abused and bullied employees but did not tie
these allegations to her prior participation in EEO protected activity
or show that these actions were taken in reprisal. Complainant did not
deny or contest the factual bases for these actions; she only explained
her reasons for her actions, which does not demonstrate pretext.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the Agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred.
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
__2/3/11________________
Date
1 We affirm the Agency's dismissal of Complainant's claim that she was
verbally reprimanded and sent to an office by herself for failure to
state a claim. See 29 C.F.R. � 1614.107(a)(1).
2 The Commission does not have jurisdiction over the FMLA, except
for EEO claims of discriminatory application of FMLA provisions based
on an employee's membership in a protected class. Here, the dispute
concerns the use of Complainant's FMLA leave according to the document
in question. We note that the Agency contended that it did not include
absences properly taken under FMLA in its disciplinary actions.
3A demonstration of pretext requires Complainant to demonstrate that
the Agency's explanations for its actions were not its true reasons and
that its actions were influenced by legally impermissible criteria, i.e.,
animus because of her disability and prior EEO activity. See St. Mary's,
above. A Complainant may demonstrate pretext by showing that the reasons
offered by the Agency are without a factual basis and not the actual
motivation for its actions. Based on the record, including relevant
statements from the parties, we must determine whether there exists
sufficient and preponderant evidence demonstrating that the Agency's
explanations for its adverse actions were false or baseless, that they
constituted pretext for discrimination, and that a decision-maker might
reasonably conclude that the Agency unlawfully discriminated against the
Complainant. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).
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01-2009-1490
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091490