01974614
08-17-2000
Kimberly G. Benton, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kimberly G. Benton v. United States Postal Service
01974614
August 17, 2000
Kimberly G. Benton, )
Complainant, )
) Appeal No. 01974614
) Agency No.4H-350-1206-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
� 2000e et seq.,<1> and � 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq.<2> Accordingly, the appeal is accepted
in accordance with 64 Fed. Reg. 37,644,37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the bases of sex (female) and physical disability
(herniated disc) when, on January 27, 1995, the supervisor gave her an
official discussion regarding attendance deficiencies,<3> and subsequently
issued her a Letter of Warning (LOW) on March 7, 1995, for failure to
be regular in attendance.<4>
BACKGROUND
Complainant was a Distribution Window Clerk at the Carolyn Station Post
Office, Montgomery, Alabama. Complainant claimed that the supervisor
discriminated against her based on her sex and physical disability
because she used leave for prenatal care, maternity leave,<5> and
medical treatments for her herniated disc. Complainant suffered an
on-the-job injury in May 1988, which partially disabled her from May 5
to 30, 1988. Complainant was released back to full duty on May 30, 1988.
Complainant averred that during the discussion for failure to be regular
in attendance held January 27, 1995, the supervisor informed her that
her leave usage was out of compliance. Complainant averred both that
the supervisor did not specifically cite any dates in the discussion and
that the leave record presented to her included days on which complainant
was on leave for prenatal care, maternity leave and back treatments.
Complainant averred that the agency was aware of her back injury
because she filed an Office of Workers' Compensation Program (OWCP)
claim in 1988. The record contains an OWCP form, dated August 23, 1988,
specifying that complainant could resume work within the limitation of
lifting up to 30 pounds. Complainant claimed that a comparison employee
with asthma was allowed to frequently use leave, whereas she was not.
The supervisor, assigned to Carolyn Station in October 1994, averred
that she reviewed all of the employees leave records, and issued
discipline to another employee for failure to be regular in attendance.
She averred that she relied on information in the National Agreement, the
Division Manager's Guide to Attendance Control, and Management Instruction
EL-510839 to issue discipline to complainant. The supervisor averred that
complainant was on maternity leave prior to the supervisor's assignment,
and that she scheduled the discussion with complainant only after
complainant incurred numerous unscheduled absences after October 1994.
The supervisor averred that no dates occurring prior to October 1994,
were cited in the discussion. She stated that complainant's attendance
continued to be unsatisfactory and further action became necessary.
The supervisor averred that she was unaware that complainant had any
disability, and that complainant never filed any requests for job
modification or light duty.
The record indicates that six employees, five females and one male,
worked for the supervisor. The supervisor issued discipline to
Comparison Employee A for failure to be regular in attendance on August
9, and 31, 1995, and September 1, 6, 7, 12, 14, 22, 26, and 27, 1995.
Comparison Employee B had approximately 11 sick leave absences for
1995; attendance records for Comparison Employee C could not be found;
Comparison Employee D, male, had one sick leave absence; Comparison
Employee E had 2 sick leave absences and Comparison Employee F had 3
sick leave absences. Complainant and Comparison A both received LOWs.
Comparisons B, C, D, E, and F did not receive any discipline.
In its final decision, the agency found that complainant failed to
establish a prima facie case of discrimination based on sex because she
failed to show that she was treated differently than similarly situated
individuals outside of her protected group. The agency noted that
complainant failed to show that any employee with an attendance record
similar to hers did not receive the same discipline. The agency noted
that complainant's pregnancy related absences could not have been a factor
in the actions taken because the supervisor did not know complainant at
that time, and only considered absences occurring after October 1994.
The LOW was issued when complainant's attendance failed to improve after
the January 27, 1995, discussion.
The agency further found that complainant failed to establish that she
was a qualified individual with a disability under the Rehabilitation
Act. The agency noted that complainant failed to demonstrate that she
had an impairment which substantially limited one or more major life
activities, had a record of such impairment, or was regarded as having
an impairment.
On appeal, complainant argues that the supervisor gave her a copy
of her 1994 Attendance Record during the Official Discussion, which
included the dates of her pregnancy related absences. She states that in
November 1993, she gave her station manager her doctor's October 21, 1993
letter notifying the agency that she was at risk for pregnancy-related
complications. She also states that the doctor treating her herniated
disc gave her a letter which she provided to the agency, recommending
a weigh-lifting restriction of 30 pounds.
FINDINGS AND ANALYSIS
Complainant's claim of discrimination based on sex presents the issue of
whether the agency subjected her to disparate treatment on this basis.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides an
analytical framework for proving employment discrimination in cases in
which disparate treatment is alleged. First, complainant must establish
a prima facie case by presenting enough evidence to raise an inference
of discrimination. McDonnell Douglas, supra, at 802. The agency may
rebut complainant's prima facie case by articulating legitimate,
nondiscriminatory reasons for its action, and if the agency does so,
complainant must show, by a preponderance of the evidence, that the
agency's reasons are a pretext for discrimination. Id.
The Commission notes that the McDonnell Douglas analysis need not be
adhered to in all cases. Where the agency has established legitimate,
nondiscriminatory reasons for its employment decision, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, that is, whether the complainant has proven by a
preponderance of evidence that the agency's explanations were a pretext
for actions motivated by prohibited discriminatory animus. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for the Official Discussion and the LOW.
The supervisor stated that she only considered absences occurring after
she became the supervisor in October 1994. The record indicates that
complainant incurred numerous absences between October 1994, and January
27, 1995, and between January 27, and March 7, 1995. The Commission
notes that the supervisor issued a LOW to another employee with similar
irregular attendance. Complainant failed to show that she was treated
differently than similarly situated employees or that the reason cited
by the supervisor was a pretext for discrimination.
To bring a claim of disability discrimination, complainant must
first establish that she has a disability within the meaning of
the Rehabilitation Act. Murphy v. United Parcel Service, Inc., 527
U.S. 516 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999);
Albertsons, Inc., v. Kirkingburg, 527 U.S. 555 (1999); Cook v. United
States Postal Service, EEOC Request No. 05960015 (June 21, 1996)
(To merit the protection of the Rehabilitation Act, it is not enough
to have a particular medical condition that carries the potential for
substantial limitations).
To establish a prima facie case of disability discrimination, complainant
must show that:(1) she is an individual with a disability as defined
in 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with
a disability as defined in 29 C.F.R. � 1630.2(m); and (3) the agency
took an adverse action against her. See Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981). Complainant also must demonstrate
a causal relationship between her disabling condition and the agency's
reasons for the adverse action.
EEOC Regulation 29 C.F.R. � 1630.2(g) defines an individual with a
disability as one who: (1) has a physical or mental impairment that
substantially limits one or more of that person's major life activities;
(2) has a record of such impairment; or (3) is regarded as having such an
impairment. EEOC Regulation 29 C.F.R. � 1630.2(h)(2)(i) defines "major
life activities" as including the functions of caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. A "qualified individual with a disability�
within the meaning of 29 C.F.R. � 1630.2(m) is defined as, with respect
to employment, a disabled person who, with or without reasonable
accommodation, can perform the essential functions of the position in
question.
The Commission has considered the severity and duration of complainant's
condition and finds that complainant is not an individual with a
disability within the meaning of the regulations. The record indicates
that complainant was unable to work from May 5, to May 30, 1988, and was
returned to full duty on May 30, 1988, with the limitation of lighting
only up to 30 pounds and using proper lifting techniques. The OWCP
form indicated no permanent effects from the injury. Complainant fails
to show that her herniated disc substantially limited one or more of
her major life activities. Even with a weight restriction on lifting,
complainant was not limited in her ability to perform her job, a range
of jobs, or other life functions.
There is no evidence that complainant had a record of a disability,
or was regarded by the agency as having a disability. Complainant had
a record of filing an OWCP claim in 1988. However, she never filed
any requests for a job modification or light duty with or subsequent to
that claim. The supervisor averred that she did not consider complainant
to be disabled.
Assuming, arguendo, that complainant established that she is an
�individual with a disability,� she has not demonstrated that there
is a connection between her alleged disability and the challenged
action. There is no evidence that the supervisor gave complainant the
official discussion or issued the LOW because of her herniated disc.
The supervisor averred that she counseled complainant because of
complainant's failure to be regular in attendance after October 1994,
after complainant's pregnancy-related absences. The supervisor stated
that she issued the LOW because complainant continued to fail to be
regular in attendance after the discussion.
In summary, while some of the leave considered was attributed to
complainant's requests for FMLA for her daughter's illness, there is
no evidence that the supervisor's actions were related to complainant's
herniated disc or pregnancy.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the agency's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 17, 2000 ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
3The record indicates that complainant used either sick leave, emergency
annual leave, or leave without pay on October 13 and 21, 1994, November
1, 2, 21 and 23, 1994, and January 5, 6, 9, 20, 23, and 26, 1995.
Complainant specified FMLA leave on her leave requests for November 1,
1994, and January 9, 1995.
4The LOW cited February 10, 13, 14, and 17, 1995, as dates on which
complainant was not regular in attendance. Complainant filed a grievance
and the LOW was subsequently removed from her file on August 1, 1995.
5Nothing in the record indicates when and how much FMLA leave complainant
used in 1994, or when complainant was on maternity leave. A Doctor's
letter dated October 21, 1993, indicates that complainant was experiencing
pregnancy-related complications in the Fall of 1993. It appears from
the record that complainant returned to work prior to October 1994.