0120070500
08-01-2008
Wanda B. Kramp, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wanda B. Kramp,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070500
Agency No. 1H-324-0015-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 13, 2006, final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
Complainant worked as mail processing clerk at the West Palm Beach
Processing and Distribution Center, in Florida. In her formal complaint
dated June 22, 2006, complainant alleged that the agency discriminated
against her on the bases of sex (female), disability (knee, jaw, and wrist
injury), and in reprisal for prior protected activity when she was denied
light duty on several days in May 2006. Following an investigation,
complainant requested a decision from the agency without a hearing, and
the agency issued the FAD, finding that the agency did not discriminate
against complainant.
In its FAD, the agency concluded that, even assuming that complainant
established a prima facie of discrimination, the agency articulated
legitimate, nondiscriminatory reasons for its actions, and complainant
did not demonstrate pretext.
The record shows that complainant was injured in a fall on March 20,
2006, and her doctor released her to return to full duty on March
31, 2006. Notwithstanding her doctor's release, complainant informed
the Manager, Distribution Operations, that she could not perform the
full duties of her position. In regard to her claim based on sex and
disability, the agency explained that complainant did not submit the
required form and documentation to request light duty until after May
25, 2006, and her request was granted at that time.1 On the dates she
identified in her complaint, the record shows that she requested and
was granted Family Medical Leave Act leave. As to her claim based on
reprisal, the agency held that complainant's most recent prior EEO
activity occurred in 2004, a time period too long ago to establish
causation.2
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
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.3
Accordingly, the agency's decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
__08/01/2008________________
Date
1 Complainant acknowledged that she did not complete her request for
light duty until she saw her doctor on May 25 or 26, 2006, after which
she submitted it to the agency.
2 In general, to demonstrate a causal connection using temporal proximity,
the separation between the employer's knowledge of the protected activity
and the adverse employment action must be very close. See Clark
County School District v. Breeden, 532 U.S. 268 (2001) (holding that a
three-month period was not proximate enough to establish a causal nexus);
EEOC Compliance Manual, Section 8, Retaliation, pp. 8-18 (there must
be proof that the acting agency official(s) took the action at issue
because of complainant's prior protected activity and sought to deter
complainant or others).
3 We assume, without finding, for the purposes of analysis only,
that complainant is an individual with a disability as alleged.
See Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act EEOC Notice No. 915.002
at Question 7 (October 17, 2002). This Guidance is available on the
Commission's website at www.eeoc.gov.
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0120070500
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070500