0120093229
08-12-2011
Donna H. Valentino, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Donna H. Valentino,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120093229
Hearing No. 510-2009-00246X
Agency No. 1H-336-0070-08
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated June 9, 2009, finding no discrimination. 29 C.F.R. § 1614.405(a).
For the following reasons, we AFFIRM the Agency’s final decision.
BACKGROUND
In her complaint, Complainant, a Clerk at the Agency’s Tampa
Processing and Distribution Center, alleged discrimination based on
sex (female), age (over 40), and disability (seizure, headaches, and
focal neurological defects) when on July 14, 2008, her schedule was
changed. After completion of the investigation of the complaint, the
Agency indicated that Complainant failed to timely request a hearing.
The Agency then issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut.
The record indicates that Complainant requested a hearing to an EEOC
Administrative Judge (AJ) on June 11, 2009. On August 27, 2009, the AJ
dismissed Complainant’s hearing request indicating that the request
was untimely since she received her right to request a hearing upon the
Agency’s completion of the investigation of her complaint on March
25, 2009. Therein, AJ stated that the Agency properly issued its final
decision because it also had not received a notice that Complainant
intended to pursue her claim by requesting a hearing.
On appeal, Complainant contends that on April 10, 2009, her non-legal
representative placed her request for hearing form in the Agency’s
P.O. Box “21797.” Complainant also submits an identified
individual’s statement indicating that that individual witnessed
the representative placing an envelope in P.O. Box “21979” which
contained a certificate of service for EEO case for Complainant.
ANALYSIS AND FINDINGS
Initially, the record indicates that on March 25, 2009, Complainant
received the Agency’s report of the investigation of her complaint.
Complainant does not dispute this. Therein, Complainant was clearly
informed that she must file a request for a hearing to the AJ in
Miami District Office within 30 days of the receipt of the report.
However, the AJ stated that he did not receive Complainant’s hearing
request until June 11, 2009, which was beyond the requisite time limit.
Complainant does not dispute this. Despite Complainant’s contentions,
based on the foregoing, we find that the Agency properly issued its
final decision without a hearing.
After a review of the record, we, assuming arguendo that Complainant had
established a prima facie case of discrimination, find that the Agency
has articulated legitimate, nondiscriminatory reasons for the schedule
change. The Agency stated and Complainant acknowledges that since
October 2005, she had been accommodated with scheduled reporting times
of 1:30 pm to 10:00 pm with a light duty assignment (injured off-duty).
Complainant claimed that at the relevant time period, her schedule was
changed with new scheduled reporting times from 4:00 pm to 12:30 am.
A Manager, Light Duty Board, stated that Complainant’s restrictions
consisted of: no lifting, pushing, or pulling over 20 lbs; limited
climbing; work only between 6:00 am and 11:00 pm; stand for 4 hours,
sit 8 hours, and walk up to 6 hours; no repeated bending or twisting;
and use a straight-back chair. The Manager asserted that the alleged
incident only related to Complainant’s schedule and not her duties.
Specifically, the Manager indicated that Complainant’s schedule change
was due to the Agency’s operational needs and there was just not enough
mail to accommodate Complainant.
Assuming (without deciding) that Complainant was an individual with a
disability, we find that Complainant failed to show that she was denied
a reasonable accommodation or that the Agency’s schedule change was
motivated by discrimination. There is no evidence in the record to show
that during the relevant time period at issue, the Agency had a vacant
funded position for Complainant to work between 6:00 am and 11:00 pm
to which she might be assigned consistent with her medical limitations.
The Agency also stated and we agree that Complainant failed to show that
she was treated less favorably than a similarly situated employee under
similar circumstances.
CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
8/12/11
__________________
Date
2
0120093229
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093229