01A01606
12-11-2001
Nanette Elman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nanette Elman v. United States Postal Service
01A01606
12-11-01
.
Nanette Elman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01606
Agency No. 1A-119-1002-96; 4A-117-0059-97
Hearing No.
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. 2000e et seq. (1994 & Supp. IV 1999) (Title VII), and the
Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 et seq. (1994 &
Supp. IV 1999) (Rehabilitation Act). The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
ISSUE
Complainant alleged that she was discriminated against on the bases of
religion (Jewish) and disability (carpal tunnel syndrome) and that she
was retaliated against for previously participating in equal employment
opportunity (EEO) activity when:
(1) from November 9, 1996 - December 9, 1996, the agency failed to
comply with the terms of an October 27, 1995 settlement agreement;
(2) between November 9, 1996 and January 14, 1997, the agency did not
assign complainant overtime work.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as an automated mark-up clerk at the agency's Western Nassau
Processing & Distribution Center in Nassau, Long Island. In complaint
no. 1A-119-1002-96,<1> complainant sought EEO counseling on August 29,
1995, complaining that continuously before that date she was denied
the opportunity to work overtime, and that her job functions had not
been rotated. This August 29, 1995 counseling was settled on October 27,
1995.<2> On October 16, 1996 and December 9, 1996, complainant asserted
that the agency breached the October 27, 1995 settlement agreement
by not assigning her overtime and by not rotating her job functions.
At an unknown date, the agency issued a final agency decision (FAD)
which dismissed the October 16, 1996 and December 9, 1996 breach
allegation as identical to an earlier filed complaint. On June 22,
1998 complainant appealed that FAD to the Equal Employment Opportunity
Commission (EEOC) which on June 22, 1998 ordered the agency to dismiss
untimely allegations of breach but determine whether it complied with
the terms of the settlement agreement within the 30-day period preceding
the December 9, 1996 allegation of breach. EEOC also ordered the agency
to investigate complainant's December 9, 1996 allegations of on-going
disparate treatment regarding the assignment of overtime. The agency
investigated the allegations of disparate treatment, but its November 9,
1999 FAD did not address any of the breach allegations.
In complaint no. 4A-117-0059-97, complainant initiated counseling
on January 14, 1997 and asserted that she was denied the opportunity
to work overtime. The agency dismissed this complaint as untimely.
Complainant appealed the FAD to EEOC, which decided on June 15, 1999
that the agency improperly dismissed allegations of denied overtime that
arose within the limitations period, i.e., within 45-days of January
14, 1997. The agency was ordered to investigate this allegation.
Following investigations and the complainant's failure to request a
hearing in the matters, the agency issued a FAD finding no discrimination.
On appeal, both parties presented the same arguments set out in earlier
documents: complainant asserted that her supervisor failed to assign
her overtime work, while others were assigned overtime. Complainant
acknowledged that she was restricted from working on the �mech� machine,
but asserted that others from other shifts were allowed to work jobs
which complainant could have worked on an overtime basis. The agency
asserted that until December, 1997, complainant's supervisor only assigned
overtime on the �mech� machine. Complainant was restricted from working
on this machine for more than four hours per day, and thus was not
available to work overtime on that machine. Complainant's supervisor
also asserted that he rotated her job duties as much as possible, when
her job restrictions did not preclude her from performing necessary work.
ANALYSIS
In complaint no. 1A-119-1002-96, complainant adduced no evidence that
the agency breached the settlement agreement. While complainant asserted
generally that other jobs existed which she could have performed within
her limitations, she failed to show their existence between November 9,
1996 and December 9, 1996. In complaint no. 4A-117-0059-97, we will
presume that complainant showed a prima facie case of discrimination.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
Here, complainant failed to present evidence that more likely than
not, the agency's articulated reasons for its actions were a pretext
for discrimination. Complainant failed to show that she was similarly
situated with those from other shifts who performed tasks that complainant
could have been assigned on an overtime basis. Complainant similarly
failed to show that her supervisor called for overtime work on the �mech�
machine, and not �across-the-board� overtime work, in an effort to exclude
her from the overtime work because of her protected class characteristics.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FADs.
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
________12-11-01______________________
Date
1 In some documents, the agency appears to have erroneously referred to
this case as case no. 4A-117-1002-96.
2 According to complainant, the agency agreed to give complainant the
opportunity to be offered overtime work along with her co-workers,
and to rotate complainant into different job operations.