0120151944
07-18-2017
Dayle H,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dayle H,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120151944
Hearing No. 430-2013-00302X
Agency No. 4K-230-0188-12
DECISION
The Commission accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 2, 2015 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part Time Flexible Sales, Services, Distribution Associate (Clerk) at the Agency's Boydton, Virginia facility. On December 14, 2012, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of disability (thoracic spine and right scapulothoracic dysfunction) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when the Agency:
1. issued Complainant a Letter of Warning, dated March 7, 2012, for unsatisfactory attendance;
2. on April 10, 2012, issued Complainant a Notice of 7 Calendar Day Suspension for failure to follow instructions;
3. issued Complainant a Notice of 21 Calendar Day Suspension, dated April 12, 2012, for unsatisfactory attendance;
4. on unspecified dates since March 2012, instructed Complainant to work faster;
5. on unspecified dates, subjected Complainant to Pre-Disciplinary Interviews (PDIs);
6. on unspecified dates, forced Complainant to work double split shifts;
7. on August 27, 2012, improperly made contact with Complainant's medical provider;
8. from December 5 through December 14, 2012, forced Complainant to work outside her medical restrictions;
9. on December 24, 2012, denied her request for annual leave;
10. on December 25, 2012, ordered Complainant to be on "standby" to deliver Express Mail;
11. on or about December 26, 2012, issued Complainant a Notice of Removal2 for improper conduct; and
12. from January 13 through February 21, 2012, denied Complainant light duty.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on February 4 - 5, 2015.
In a decision, dated March 24, 2015, the AJ found Complainant failed to prove by a preponderance of the evidence that the Agency discriminated against her as she alleged. The AJ found Complainant's testimony lacked credibility. She stated that Complainant's testimony was often "vague, unclear, and inconsistent with [her] prior testimony" and that Complainant "was evasive and uncooperative in responding to questions." The AJ found, to the extent Complainant alleged denial of reasonable accommodation, Complainant failed to show she is "qualified" under the Rehabilitation Act, as she could no longer perform the essential functions of her Clerk job - distribution of mail duties. Further, the AJ found that Complainant could not identify any vacant funded positions to which she could have been reassigned, and the Agency is not required to create a job. Also, the AJ found that Complainant's supervisor (S1) contacted the office of Complainant's physician (P1) to inquire about Duty Status Report (CA-17) forms that had not been returned and she was transferred to P1. The AJ added that S1 and P1 did not discuss Complainant's medical condition. Summarily, the AJ concluded that Complainant failed to show that the agency's actions were based on discriminatory motives or that its contact with P1 violated the Rehabilitation Act.
The Agency issued its final order adopting the AJ's conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ 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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant has not proven discrimination by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
July 18, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Pursuant to an arbitration decision, ultimately the Agency returned Complainant to work.
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