01976524
06-29-1999
Annie L. Cooper, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.
Annie L. Cooper v. United States Postal Service
01976524
June 29, 1999
Annie L. Cooper, )
Appellant, )
) Appeal No. 01976524
v. ) Agency No. 1D-272-1031-95
) Hearing No. 140-97-8006X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (female), race (Black),
and age (58), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Appellant alleges she was discriminated against when the following
occurred:
(1) on August 4, 1995, she was sent out of the section to perform duties
of rebundling magazines, working trash from the rewrap room and code
cards after she brought in a doctor's note on July 30, 1995, detailing
her physical limitations; and
(2) on September 9, 1995, her supervisor rubbed her on the back.
This appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
At the time this complaint arose, appellant was employed with the agency
as a Parcel Distribution Clerk, PS-5, at the Bulk Mail Center, Greensboro,
North Carolina. Believing she was a victim of discrimination, appellant
filed a formal complaint alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
appellant requested a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ). Thereafter the AJ advised
the parties of her intent to issue findings and conclusions without
a hearing, pursuant to EEOC regulation, 29 C.F.R. �1614.109(e)(3).
The parties were given appropriate notice to submit any objections,
comments, or any relevant information regarding the AJ's notice. Neither
party submitted a response. Accordingly, the AJ issued a recommended
decision without a hearing on June 23, 1997, finding no discrimination.
On July 31, 1997, the agency issued a FAD adopting the AJ's RD.
Regarding issue one, the AJ concluded that appellant failed to establish
a prima facie case of disparate treatment discrimination on any bases
alleged because she failed to show that similarly situated employees, not
in her protected group, were treated differently. Moreover, the AJ noted
that it was undisputed that the agency assigned appellant to work in an
area where her physical limitations were accommodated. Additionally,
the AJ noted that it was also undisputed that other employees, with
similar physical limitations, were assigned similar tasks.
Regarding issue two, the AJ determined that appellant failed to establish
a case of hostile environment sexual harassment, because appellant
admitted that she did not ask the supervisor to cease his behavior.
"In fact, [appellant] indicated that she "just walked off" after the
supervisor rubbed her back. Moreover, the AJ noted that appellant
admitted that she did not report the supervisor's behavior to other agency
management. Finally, appellant also asserted that the supervisor did not
repeat the behavior. In light of the above findings, the AJ concluded
that appellant did not prove, by a preponderance of the evidence, that
she was discriminated against, as alleged.
The Commission has reviewed the record, consisting of the investigative
report, the AJ's recommended decision, various correspondence, appellant's
statement on appeal, and the FAD. The Commission concludes that, in
all material respects, the AJ accurately set forth the facts giving
rise to the complaint and the law applicable to the case. We find,
as did the AJ, that appellant failed to establish a prima facie case of
discrimination on any bases alleged. We note that on appeal appellant
asserts for the first time that her case should be remanded for an
appropriate investigation of the issue of disability discrimination.
In support of this argument appellant notes that the counselor's report,
which included her initial interview, indicated that appellant was also
alleging discrimination because her doctor's notes detailing her physical
limitations were ignored and that she was assigned duties beyond her
limitations while other white employees were accommodated. Based on
our review of appellant's testimony throughout this case, we find that
appellant's case was appropriately analyzed as a disparate treatment
case instead of a failure to accommodate case. We further find that
the AJ apparently considered appellant's alleged disability when she
noted that there appeared to be no dispute that the agency accommodated
appellant's physical limitations as noted by her physicians letter.
Finally, we find that appellant's request to amend her complaint after a
decision had been issued on the merits is untimely especially in light of
the fact that she was represented by counsel. Appellant had an adequate
opportunity to raise this issue when the AJ issued the appropriate notice
that she intended to issue a summary judgment in this matter. Therefore,
the Commission discerns no basis to disturb the AJ's findings of no
discrimination which were based on a detailed assessment of the record.
Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
June 29, 1999
DATE Carlton Hadden, Acting Director
Office of Federal Operations