0120112548
06-07-2012
Nancy S. Diaz, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Nancy S. Diaz,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120112548
Agency No. 4H300026710
DECISION
On April 20, 2011, Complainant filed an appeal from the Agency's March 15, 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 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Modified Full Time Rural Carrier at the Agency's Suwanee, Georgia facility.
On July 31, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (lumbar problems) and reprisal for prior protected activity when:
1. on June 8, 2010, she was sent home from work until she provided medical documentation;
2. from May 6, 2010 to June 7, 2010, management refused to provide her with a Form CA-7 so she could get paid for that period of time;
3. since June 9, 2010, she has been in the "Stand-by Room;"
4. on June 10, 2010, her off days and work hours were changed upon her return to work.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that even assuming, arguendo, that complainant was an individual with a disability, she failed to present evidence of how she was treated differently than similarly situated individuals outside of her protected class. The Agency also found that complainant presented evidence that her supervisor was aware of her prior EEO complaint as of November 2009, when he completed an affidavit. However, the Agency found complainant did not raise a prima facie case of retaliation because the time lapse from her supervisor's awareness of the prior EEO activity, until the events in question here was too far removed to create the required causal nexus.
Assuming that complainant did present evidence which supported an inference of discrimination, the agency found it articulated legitimate, nondiscriminatory reasons for its actions. The agency found complainant had been issued a removal and had been out of work for a period of time. Complainant returned to work following arbitration, but failed to present updated medical documentation to the appropriate individual. Accordingly, she was placed into the "Stand-by Room" until she presented medical documentation supporting her most recent medical restrictions. The agency stated that it had been over a year since complainant had provided updated medical information. The Agency continued by adding that complainant was placed into a position according to her last known medical restrictions, which only provided that she could not work as a Full Time Letter Carrier. The agency found complainant failed to present evidence that would establish the agency's reasons for its actions were a pretext for discrimination. Furthermore, the agency found complainant failed to establish that she was subjected to a hostile work environment.
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant states that she has presented sufficient evidence supporting a prima facie case of retaliation, and the agency failed to articulate legitimate, nondiscriminatory reasons for its actions. In response, the agency asks that we affirm its final decision.
ANALYSIS AND FINDINGS
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, at Chapter 9, � VI.A. (November 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").
After a review of the entire record, we find the preponderance of the evidence supports the agency's reasons for its actions. The record reveals complainant was out of work for a period of time. Upon her return, she asked for a CA-7 to support part of the absence. Although complainant alleges that she was not provided the form, she failed to present persuasive evidence proving she was denied the form, or that the agency's failure to provide the form was in some way an effort to retaliate against her. Furthermore, the agency maintains that it did in fact provide complainant the form. Complainant failed to produce evidence of pretext.
Once she returned to work, complainant was asked to provide medical documentation describing her most recent medical restrictions, since Complainant had not provided medical information for over one year. Because complainant's disability or the need for the accommodation was not known or obvious at the time of his request, it was consistent with business necessity for the agency to ask complainant for medical documentation about her disability and its functional limitations that required a reasonable accommodation. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), (July 27, 2000) at 20. Complainant was initially sent home, but then was brought back to work and placed in the "Stand-by Room." Complainant failed to establish that the agency discriminated against her when it sent her home or when it placed her in the "Stand-by Room" because she failed to provide the requested medical documentation. Accordingly, the Agency did not know what complainant's restrictions were, and could not assign her work. Likewise, we find that complainant's change in schedule was also due to her failure to provide medical documentation. Complainant failed to establish, more likely than not, that the agency's reasons for its actions were a pretext for discrimination or retaliation.
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
06/07/2012
__________________
Date
2
01-2011-2548
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112548