0120063930
12-12-2008
Dena Vara, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dena Vara,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200639301
Agency No. 4G-770-0132-05
Hearing No. 330-2006-00039X
DECISION
Complainant appeals to the Commission from the agency's decision dated
May 15, 2006, finding no discrimination. In her complaint, dated
June 1, 2005, complainant, a mail processing clerk at the agency's East
Houston Post Office, Houston, Texas, alleged discrimination based on race
(Hispanic), sex (female), and disability (stress) when: (1) from January
8, 2005 to February 22, 2005, her request for light duty was denied; (2)
on an unspecified date, she was not allowed to file an on-the-job injury
claim; (3) on January 8, 2005, she was sexually harassed by her supervisor
and on January 12, 2005, the supervisor shoved her in the parcel area;
and (4) on April 20, 2005, she received a Notice of Seven-Day Suspension.
Initially, the record indicates that the agency previously dismissed
three other claims concerning complainant's working conditions for
failure to state a claim and/or due to untimely EEO Counselor contact.
Since complainant does not contest this on appeal, complainant has
not presented any reason to reverse the agency's dismissal. There is
no indication that the dismissed issues were timely raised with an EEO
Counselor or rendered complainant aggrieved. Accordingly, the agency's
dismissal of those claims is affirmed.
After completion of the investigation of the complaint, claims (1) -
(4), complainant requested a hearing but it was subsequently denied due
to her failure to attend two scheduled depositions and to respond to the
agency's written discovery requests. The agency, accordingly, issued
its decision concluding that it asserted legitimate, nondiscriminatory
reasons for its actions, which complainant failed to rebut. On appeal,
complainant does not contest the denial of a hearing.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged incidents.
With regard to claim (1), complainant's manager stated that complainant
did not make a request for light duty in January or February 2005.
Complainant has not refuted the manager's assertion or shown that she
made a light duty request. Nor has complainant shown that she was
treated differently than similarly situated individuals.
With regard to claim (2), the manager stated that complainant was never
denied the opportunity to file paperwork for an on-the-job injury.
The manager indicated that she had no knowledge of an accident involving
complainant. The manager noted that complainant previously had two
separate accident reports, and not an on-the-job injury, which occurred
in 1993, and on February 19, 2004.
With regard to claim (3), the manager stated that on January 8, 2005,
complainant's AM supervisor called her and told her that complainant
was not at her work station and could not be located. The manager later
discovered complainant in the ladies room sitting in a chair sleeping.
The manager stated that she took a photo of complainant sleeping and
that the flash of the camera woke her up.
According to the manager, a few days later on January 11, 2005,
complainant's supervisor called her requesting assistance. The manager
stated that upon arriving at complainant's work area, she saw complainant
sitting in the middle of five pieces of equipment placing pieces of
mail on the ledge. She asked complainant what she was doing but she
did not respond because she had head phones on. The manager stated
that she then moved closer in order to gain complainant's attention,
complainant bent over to pick up mail, and then complainant turned around
and bumped into the manager. As a result of the bumping incident, the
manager informed complainant that she wanted to speak to complainant in
her office. Complainant then told the manager that she could not make
her go to her office. When complainant continued to refuse to follow
her orders, the manager told complainant to clock out and leave the
facility. Complainant refused to leave and the manager then called the
Postal Service Police to have complainant escorted out of the building.
The manager stated that she did not sexually harass complainant or shove
her.
With regard to claim (4), complainant's supervisor stated that she
issued complainant the suspension for failure to follow instructions.
Specifically, the supervisor indicated that on December 6, 2004,
complainant was assigned to throw parcels and instructed to set up the
parcel hampers. However, it was discovered that complainant had not
set up the hampers as instructed, and she was observed in her privately
owned vehicle. The supervisor stated that since complainant was
off work since January 11, 2005, the suspension notice, although dated
January 12, 2005, was not actually issued to complainant until April 20,
2005, upon her return to work.
The Commission does not address in this decision whether complainant is
a qualified individual with a disability. Upon review, the Commission
finds that complainant has not shown that she was denied a reasonable
accommodation. There is no indication that she was required to work
beyond her medical restrictions during the relevant time period at issue.
Furthermore, the Commission finds that complainant failed to show that
the alleged harassment was sufficiently severe or pervasive to affect
a term and condition of her employment or that any agency actions were
motivated by discrimination.
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
12/12/08
__________________
Date
1This case has been redesignated with the above-referenced appeal number.
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0120063930
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036