Kathryn C. Candell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.

Equal Employment Opportunity CommissionJul 9, 2010
0120101099 (E.E.O.C. Jul. 9, 2010)

0120101099

07-09-2010

Kathryn C. Candell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.


Kathryn C. Candell,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Eastern Area),

Agency.

Appeal No. 0120101099

Hearing No. 470-2009-00043X

Agency No. 1C-401-0029-08

DECISION

On January 11, 2010, Complainant filed an appeal from the Agency's

December 29, 2009, final order concerning her equal employment opportunity

(EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. The Commission deems the appeal timely and accepts it

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the Agency's final order.

BACKGROUND

During the relevant period, Complainant worked as a Mail Processing

Clerk at a Louisville, Kentucky processing and distribution center of

the Agency. Since September 2006, Complainant worked in a modified

position, "patching" mail, due to medical restrictions related to a

work-related injury. Complainant filed an EEO complaint alleging that

the Agency discriminated against her on the bases of race (White), sex

(female), disability (work-related neck and back injuries), age (51 at

time of incident), and reprisal for prior protected EEO activity when it

failed to select her for bid position 70163283 by denying her reasonable

accommodation, which she learned on April 22, 2008. Complainant alleged

that the Agency awarded her the position then took it away, and awarded

the position to a bidder with less seniority.

The Agency conducted an investigation of Complainant's claim. During the

investigation, an agency Operations Support Specialist (S1) stated that

complainant was the senior bidder for the position but was not awarded

it because "[she] did not provide the documentation that she could

perform the duties of the [bid] job within 6 months of the closing of the

bids.1" Affidavit of Operations Support Specialist (Affidavit B), page

2 of 18. S1 added that she is responsible for confirming that employees

provide such documentation. Further, S1 stated that she does not know

Complainant personally and does not have a working relationship with her.

Complainant's Managers stated that they are not responsible for awarding

bid assignments.

At the conclusion of the Agency investigation, the Agency provided

Complainant with a copy of the report of investigation and notice of her

right to request a hearing before an EEOC Administrative Judge (AJ).

Complainant timely requested a hearing, which the assigned AJ held

on August 13, 2009. After a hearing, the AJ issued a decision finding

"Complainant . . . has not shown that she was subjected to discrimination

. . . by the preponderance of the evidence." AJ's December 23, 2009

Amended Decision (AJ Decision), at 2. The AJ concluded that Complainant

ultimately did not receive bid position 70163283 because she failed

to provide "a certified medical record under seal" once offered the

position and given the opportunity to show that she no longer needed

to work within medical restrictions. AJ Decision at 11. The Agency

subsequently issued a final order adopting the AJ's finding. The instant

appeal from Complainant followed, without substantive comment.

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.

After a thorough review of the record, we find that the AJ's conclusion

that complainant failed to establish that the Agency's actions were

motivated by her protected classes is supported by substantial evidence

of record.2 The record establishes that the Agency provided Complainant

a modified position since late 2006, and sought to have her confirm that

she could perform duties outside of her past-cited medical restrictions

to qualify for the bid-at-issue, which she did not do. We find that

the AJ correctly determined that the alleged action was not a result of

Complainant's protected classes, but because of medical restrictions that

complainant did not controvert with medical documentation. Accordingly,

we AFFIRM the AJ's decision concluding that complainant failed to

establish discrimination as she alleged, which was fully adopted by the

final agency order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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 (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 (Z0610)

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

July 9, 2010

__________________

Date

1 We note that the record contains a letter from Complainant's physician

(P1), stamped received by the Agency health unit on April 17, 2008.

In the letter, P1 stated, "[Complainant] is restricted to a 251b weight

limit with no continuous lifting . . . can perform seventy-five percent

of the job requirements on all positions [for which she applied]." The

record indicates that the job-at-issue had a 70 lb. lifting requirement.

2 We assume for the purpose of analysis that Complainant is an individual

with a disability. See 29 C.F.R. � 1630.2(g)(1).

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0120101099

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120101099