Cocandra D. Thomas, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.

Equal Employment Opportunity CommissionDec 5, 2007
01-2006-2995_Thomas (E.E.O.C. Dec. 5, 2007)

01-2006-2995_Thomas

12-05-2007

Cocandra D. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.


Cocandra D. Thomas,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area)

Agency.

Appeal No. 01200629951

Agency No. 1H391000905

Hearing No. 130-2005-00236X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's March 15, 2006 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. and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

Complainant alleged that the agency discriminated against her on the bases

of disability (hip) and in reprisal for prior protected EEO activity when:

(1) on December 23, 2004, she was denied overtime; (2) on February 8,

15, and 22, 2005, she was denied off-day and holiday overtime; and (3)

she was subjected to harassment from March 14, 2005 through April 18,

2005 when (a) her supervisor tried to force her to sign a new modified

job offer - changing her work hours and days off; (b) she was placed

off the clock and not allowed to return to work until she signed the

job offer; and (c) after an absence due to stress, she was required to

receive medical clearance by her doctor.

Following a hearing, an Administrative Judge (AJ) concluded that with

respect to Issues 1 and 2, the preponderance of the evidence established

that the agency articulated a legitimate, non-discriminatory reasons for

not allowing complainant to work overtime on her days off, or on holidays,

i.e., she had been accommodated for her restrictions, by being placed in

a limited duty job assignment, and because of her restrictions, she could

not perform the full range of duties that would have been required of her

had she been allowed to work overtime. In addition, the AJ concluded

that complainant failed to establish a prima facie case of reprisal

because the preponderance of the evidence shows that the responsible

management officials were unaware of complainant's prior EEO activity.

With respect to Issue 3, the AJ concluded that the available evidence

does not establish a prima facie case of harassment. According to the AJ,

the agency's conduct, in requiring complainant to sign a new modified

job offer was consistent with its work related needs. Further, placing

complainant off the clock was a reasonable response to her refusal to

sign the new modified job offer. A medical return to work clearance was

required of all employees who had been off work due to stress related

illnesses.2

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the final agency order because

the Administrative Judge's ultimate finding, that unlawful employment

discrimination was not proven by a preponderance of the evidence, is

supported by the record.3

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

December 5, 2007

__________________

Date

1 Due to a new data system, complainant's case has been re-designated

with the above-referenced appeal number.

2 The AJ's conclusions are also consistent with finding insufficient

evidence of disparate treatment with respect to Issues 3(a), (b) or (c).

3 For purposes of this decision, the Commission assumes, without deciding,

that complainant is an individual with a disability.

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0120062995

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036