Amber Chew, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 10, 2007
0120071952 (E.E.O.C. Sep. 10, 2007)

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.

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0120071952

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

3

0120071952