01973666
06-06-2000
Eva R. Travis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region), Agency.
Eva R. Travis v. United States Postal Service
01973666
June 6, 2000
Eva R. Travis, )
Complainant, )
) Appeal No. 01973666
v. ) Agency No. 4C-440-1302-95
) Hearing No. 220-96-5103X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic Region), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).<2> Complainant
alleges she was discriminated against on the bases of sex (female), age
(44), physical disability (job related injuries) and in reprisal for
prior EEO activity when she was issued a fourteen day suspension in
June 1995 and when, between April 27, 1995 and June 14, 1995, an EEO
Counselor tried to convince her to withdraw a complaint; her medical
restrictions were violated; her representative was told to be in uniform;
the station manager sent her to pick up his lunch and informed a former
co-worker that complainant was on suspension. For the following reasons,
the Commission affirms the agency's final decision.
The record reveals that complainant, a Letter Carrier at the agency's
Euclid Station in Cleveland, Ohio, filed a formal EEO complaint on August
25, 1995, alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision finding no discrimination which the agency adopted
as its final decision. It is from this decision which complainant,
without comment, now appeals.
Assuming for the sake of argument that complainant established a
prima facie case of discrimination on all of her alleged bases with
the exception of disability, the AJ found that the agency articulated
a legitimate, nondiscriminatory reason for suspending complainant,
namely that even after a series of warnings, complainant had attendance
deficiencies. The AJ concluded that complainant failed to present
probative evidence that the agency was motivated by anything other than
her inability to come to work as scheduled when it issued the suspension
based on the principle of progressive discipline.
The AJ further concluded that complainant suffered no direct personal loss
or harm which affected a term, condition or privilege of her employment as
a result of the alleged remarks by the EEO Counselor or when the station
manager displayed poor judgment when he asked her to pick up his lunch.
The AJ also found that the station manager abided by complainant's driving
restrictions as soon as they were brought to his attention; that there
was no merit to complainant's claim that the station manager was trying to
look up her representative's skirt; and that the evidence failed to show
that complainant's sex, age, disability or prior EEO activity were factors
in his decision to inform an insistent caller that she was on suspension.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Without reaching the issue of whether or not the AJ correctly determined
that complainant was not an individual with a disability within the
meaning of the Rehabilitation Act, the Commission finds that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We find that complainant
failed to present evidence that any of the agency's alleged actions were
in retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward her sex, age or disability. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including arguments and evidence not specifically addressed
in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 6, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time, the
ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints of
disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.