0120091863
08-11-2009
Cynthia E. Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cynthia E. Moore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091863
Hearing No. 450-2008-00339X
Agency No. 4G-752-0202-08
DECISION
On March 27, 2009, complainant filed an appeal from the agency's February
27, 2009 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission affirms the agency's final order.
At the relevant time, complainant worked as a Lead Sales and Services
Clerk at a Texas facility of the agency. In a formal EEO complaint dated
May 1, 2008, complainant alleged that the agency discriminated against
her on the bases of disability (knee and back injuries) and reprisal for
prior EEO activity when (1) on January 11, 2008, management issued her
an unwarranted sick leave restriction letter, (2) on February 6, 2008,
she received two pre-disciplinary actions, (3) on February 11, 2008,
her supervisor (S1) refused to accept her return to work documentation
that stated that she needed to sit while working, (4) on February 13 &
27, 2008, she received three pre-disciplinary actions each date, (5) on
February 14, 2008, she received two letters of warning and a seven day
suspension, (6) on February 28, 2008, she received a 14-day suspension,
and (7) on April 15, 2008, she received a Notice of Removal.
On July 11, 2008, the agency accepted the latter incident date for
(4), (6), and (7) for investigation; and dismissed (1) for untimely
EEO contact and (2) - (3), the earlier incident date for (4), and (5)
for failure to state a claim. All dismissals were made pursuant to 29
C.F.R. � 1614.107(a).
At the conclusion of the investigation, complainant was provided 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. At the hearing stage, complainant withdrew the
remaining claims except (7) - the removal. During the hearing, S1 stated
that she recommended complainant's removal because, in February 2008,
complainant followed her into her office, slammed her office door,
blocked her from leaving, and then pushed her. S1 stated that she ran
out of her office screaming and called 9-1-1. S1 stated that she later
cancelled her call to 9-1-1.
The AJ issued a decision finding no discrimination. Specifically,
the AJ concluded that complainant failed to establish a prima facie
case of discrimination on either basis or to show that the legitimate,
nondiscriminatory reasons articulated by the agency are pretext.
Subsequently, the agency issued a final order implementing the AJ's
decision. The instant appeal from complainant followed. On appeal,
complainant stated that she attempted to talk to S1 about the hostile work
environment so she went in her office and closed the door and that S1 ran
toward her with rage in her eyes telling her to get out of her office.
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.
Based upon a thorough review of the record, we agree with the agency's
finding of no discrimination1. The Rehabilitation Act does not preclude
an employer from establishing and enforcing standards of employee conduct
as long as such standards are job-related, consistent with business
necessity, and enforced uniformly among all employees. EEOC Enforcement
Guidance: The Americans with Disabilities Act - Applying Performance and
Conduct Standards to Employees with Disabilities, III, Questions 9 & 20
(September 2008); EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship under the Americans with Disabilities Act, EEOC Notice
No. 915.002 (October 17, 2002). We find that complainant failed to show
that the circumstances surrounding her removal give rise to an inference
of discrimination or that the agency's proffered reason is a pretext
for discrimination. See Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). Based on the above, we AFFIRM the final agency order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
August 11, 2009
__________________
Date
1 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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0120091863
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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