0120071952
09-10-2007
Amber Chew, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Amber Chew,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071952
Agency No. 4F926006905
Hearing No. 340200500691X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 1, 2007, final order 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.
Complainant alleged that the agency discriminated against her on the
bases of disability (right knee) and reprisal for prior protected EEO
activity in 2003, when she was reassigned from the carrier craft to the
clerk craft on October 28, 2004.1
Following a hearing, the EEOC Administrative Judge (AJ) issued a
decision finding that complainant did not show that she could perform the
essential functions of the carrier position with or without a reasonable
accommodation. Specifically, the AJ found that complainant's medical
restrictions did not allow her to perform the carrier function, and that
she did not establish that there were vacant positions within the carrier
craft to which she could be reassigned. The agency reassigned her to the
clerk craft, which the AJ found provided her a reasonable accommodation.
With regard to her claim based on reprisal, the AJ, among other things,
found that the agency provided a legitimate, non-discriminatory reason
for its actions, i.e., complainant's inability to perform the essential
functions of the carrier craft.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, whether addressed or not, it is
the decision of the Equal Employment Opportunity Commission to affirm the
agency's final order, because the Administrative Judge's ultimate finding,
that unlawful employment discrimination was not proven by a preponderance
of the evidence, is supported by the record.2 Complainant argued that,
while she did not immediately lose money upon transfer, she would be
frozen at the clerk's pay rate until the clerk pay caught up with the
carrier craft; notwithstanding this contention, complainant failed to
establish discrimination.
CONCLUSION
Accordingly, the agency's final order is AFFIRMED.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____9/10/07______________
Date
1 Complainant withdrew her claim based on age (45).
2 EEOC Regulation 29 C.F.R. � 1614.405(a) provides that all post-hearing
factual findings by an Administrative Judge will be upheld if supported
by substantial evidence in the record. Substantial evidence is defined as
"such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding. See
Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
3 In reaching the above decision, we assumed without finding, for the
purposes of analysis only, that complainant was an individual with a
disability as alleged.
??
??
??
??
2
0120071952
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120071952