Benita A. Elder, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Mid-Atlantic Area), Agency.

Equal Employment Opportunity CommissionJul 6, 2001
01986352 (E.E.O.C. Jul. 6, 2001)

01986352

07-06-2001

Benita A. Elder, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Mid-Atlantic Area), Agency.


Benita A. Elder v. United States Postal Service

01986352

July 6, 2001

.

Benita A. Elder,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Mid-Atlantic Area),

Agency.

Appeal No. 01986352

Agency No. 1D-2761013-96

Hearing No. 140-97-8078X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleges she was discriminated

against on the bases of race (Black) and disability (back pain) when:

(1) her request for leave for a doctor's appointment was denied; and

(2) her request for leave to attend her grandmother's funeral was denied.

For the following reasons, the Commission AFFIRMS the agency's final

decision.

The record reveals that complainant, a full-time Regular FSM-Clerk

at the agency's Raleigh, North Carolina facility, filed a formal EEO

complaint with the agency on June 24, 1996, alleging that the agency

had discriminated against her as referenced above. At the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

Following a hearing, the AJ issued a decision finding no discrimination.

The following facts were established in the record. Complainant requested

leave in order to keep a November 9, 1995 (Veteran's Day) appointment

at the Veterans Administration. The appointment was scheduled for

3:00 p.m., however complainant was not scheduled to work until 10:30

p.m. that same day. Complainant requested leave because she did not

expect to be able to rest before starting work at 10:30 p.m. that night.

Complainant believed that she was subjected to less favorable treatment

than a comparative employee (C1) (White, disability unknown) in that C1

was permitted to use leave during the time in question. In response,

complainant's supervisor (S1) (Black, no disability) testified that he

denied complainant's leave request because it fell on a holiday and he was

already short staffed. S1 noted that complainant's doctor's appointment

was not scheduled during complainant's shift so it was possible for

complainant to go to her appointment and still work her entire shift.

Lastly, S1 explained that C1 was the senior FSM-Clerk and was due priority

on leave requests in accordance with a union agreement.

With respect to complainant's leave request to attend her grandmother's

funeral on November 23-24, 1995, an acting supervisor (AS1)<1> (race

and disability unknown) and the Distribution Operations Supervisor (S2)

(race and disability unknown) made the decision to deny complainant's

request for November 23, 1995, but did grant complainant's leave request

for November 24, 1995. S2 explained that complainant was denied leave on

November 23, 1995 because she would not have had enough staff to process

the mail that day if complainant was not there. The complainant alleged

that she was subjected to less favorable treatment than a comparison

employee (C2) (White) (disability unknown), who complainant believes

was permitted to take three days of leave when his grandmother died.

S2 testified that she did not approve C2's leave and he worked on a

different tour. Lastly, the record indicates that C2's leave request

did not fall on the same days as complainant's leave request.

The AJ concluded that complainant failed to establish a prima facie

case of disability or race discrimination. Specifically, the AJ found

that complainant failed to demonstrate that C1 and C2 were similarly

situated to complainant. The AJ noted that C1 was a senior Clerk

and permitted priority scheduling of leave over complainant due to

her seniority. The record also indicates that C2's leave request was

approved by different supervisors and he worked on a different tour.

With respect to disability, the AJ determined that complainant failed

to prove that she was an individual with a disability. Specifically,

the AJ concluded that complainant failed to present evidence that she

was substantially limited in a major life activity. Accordingly,

the AJ concluded that complainant failed to prove, by a preponderance

of the evidence, that she was discriminated on the bases of race and/or

disability when she was denied leave.

The agency's final decision implemented the AJ's decision. Complainant

makes no new contentions on appeal, and the agency requests that we

affirm its final decision.

Pursuant to 29 C.F.R. � 1614.405(a), 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 that discriminatory intent did not exist is a factual finding.

See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. Without decided

whether complainant is an individual with a disability, we find that

assuming, arguendo, that complainant was able to present a prima

facie case of discrimination, we find that the agency articulated

legitimate, non-discriminatory reasons for its employment actions and

complainant failed to present any facts which could establish pretext

or discriminatory animus.

We discern no basis to disturb the AJ's decision. Therefore, after a

careful review of the record, including and arguments and evidence not

specifically addressed in this decision, we AFFIRM the agency's final

decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

July 6, 2001

__________________

Date

1 S1 was not working during the time frame when complainant requested

leave for her grandmother's funeral. Accordingly, the evidence of record

shows that S1 had no involvement in that request.