0120070312
04-16-2009
Aline Carson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Aline Carson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070312
Hearing No. 410-A6-00106X-LL
Agency No. 1H-302-0036-05
DECISION
Complainant appeals to the Commission from the agency's decision dated
September 13, 2006, finding no discrimination. In her complaint, dated
August 2, 2005, complainant alleged discrimination based on disability
(degenerative arthritis, bilateral knee problems, and chronic knee pain)
and in reprisal for prior EEO activity when from August 8, 2005 until
January 10, 2006, she was subjected to a hostile work environment in that:
(1) management and co-workers made demeaning remarks to her about her
weight and made obscene gestures towards her; (2) she was required to
work in close proximity to harassing coworkers; (3) she was forced to
stand for long periods of time without a break; (4) she was required to
wait for a relief employee before she could go to lunch; (5) she was
harassed about her needing to go to lunch even though it was already
past her scheduled lunch period; (6) she was required to work overtime;
(7) her disability was not accommodated; (8) she was denied annual and
FMLA leave; and (9) her requests to be transferred to another facility
for the purpose of escaping her hostile work environment were denied.
After completion of the investigation of the complaint, complainant
requested a hearing but it was denied by an EEOC Administrative Judge (AJ)
due to her failure to respond to the agency's discovery or AJ's orders.
The AJ also noted that complainant at one time informed her that she
wanted to continue with her hearing and at another time she did not want
to continue with her hearing. On appeal, complainant does not dispute
the AJ's statements. The AJ thus ordered the agency to issue its final
decision, which the agency did concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which complainant failed to
rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged incidents. During the relevant time, complainant was
employed as a Part-Time Flexible (PTF) Mail Processing Clerk at the
agency's North Metro Processing & Distribution Center (P&DC) in Duluth,
Georgia.
As to claims (1) and (2), complainant's supervisors and her coworkers
denied making any derogatory remarks, gestures, or subjecting her to any
hostile work environment as she alleged. As to claim (3), the supervisor
stated that complainant received two breaks and one lunch the same as
any other employee and her breaks were never given 2-3 hours late as
she claimed. As to claims (4) and (5), the supervisor indicated that all
employees, including complainant, were required to wait for lunch relief
when the mail volume was high and complainant was relieved as soon as
she got a relief person, which was how the other employees were treated.
If there was a variation in time, stated the supervisors, it was no more
than three to seven minutes. As to claim (6), the supervisors stated
that overtime was called regularly for all PTFs, including complainant,
and regulars and that complainant even requested overtime at times.
As to claim (7), the supervisors stated that from August 25, 2005, through
September 30, 2005, complainant's medical documentation indicated that
she needed to take a break every two hours. The supervisor also stated
that complainant's October 12, 2005 medical documentation indicated that
she could not kneel, climb or squat and that she should limit standing
to 6 hours. The supervisor indicated that complainant's restrictions
during the relevant time period were clear and they were followed as
written. In order to further accommodate complainant, the supervisors
stated that complainant was assigned to work on the Multi-Line Optical
Character Reader and to report at a later time. Complainant accepted
this assignment and reported as scheduled the next day.
As to claim (8), the agency FMLA coordinator stated that he denied
complainant's FMLA leave requests dated December 1 and 21, 2005,
because at that time she had not been employed by the agency for at least
one-year, thus, making her ineligible for such leave. After complainant
reached her one-year anniversary with the agency, the coordinator stated
that she reapplied for FMLA and it was approved on December 30, 2005.
Complainant's manager indicated that complainant's leave request was
denied since she had a zero balance of leave accrued at that time. As to
claim (9), the manager stated that complainant could not be reassigned
to another facility pursuant to the applicable collective bargaining
agreement, but she offered complainant a detail for up to sixty days.
On appeal, complainant does not dispute the foregoing statements.
Furthermore, we find that complainant failed to prove by a preponderance
of the evidence that the agency's proffered reasons were merely a pretext
for discrimination. With regard to her claim of harassment, we find that
complainant failed to establish the severity of the conduct in question
or that it was related to any protected basis of discrimination. We also
find that complainant failed to show that she was treated less favorably
than a similarly situated employee under similar circumstances. Assuming
(without deciding) that complainant was an individual with a disability,
we find that complainant failed to show that she was denied a reasonable
accommodation or that any agency actions were motivated by discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
4/16/09
__________________
Date
2
0120070312
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013