01997247
04-16-2002
Helen Mangano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Helen Mangano v. United States Postal Service
01997247, 01A01467
April 16, 2002
.
Helen Mangano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01997247, 01A01467
Agency Nos. 4A-105-1109-96, 4A-105-1027-97
Hearing Nos. 160-97-8692X, 160-98-8519X
DECISION
Complainant timely initiated appeals from the agency's final orders
concerning her equal employment opportunity (EEO) complaint of unlawful
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. The appeals are accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final orders.
Appeal No. 01997247
The record reveals that complainant, a Clerk (ODIS), PS-6 at the agency's
Poughkeepsie, New York, Post Office facility, filed a formal EEO complaint
on September 6, 1999, alleging that the agency had discriminated against
her on the bases of race (Caucasian), disability (Adjustment Disorder),
and reprisal for prior EEO activity when, on April 18, 1996, she was
issued a Notice of Termination for failure to comply with instructions
and excessive absence without leave.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing, finding no
discrimination. The agency's final order implemented the AJ's decision.
On appeal, complainant restates arguments previously raised with the
AJ. Complainant also contends that the instant case should have been
consolidated with the case that is the subject of Appeal No. 01A01467,
discussed further below.<1> In response, the agency restates the position
it took in its FAD, and requests that we affirm its final order.
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. The Commission finds that, in all material respects, the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Assuming for the
sake of argument that complainant has established coverage under the
Rehabilitation Act as well as Title VII, the agency met its burden of
explanation by showing that complainant had refused to report for her new
assignment and by failing to provide any documentation to explain why she
could not report. Further, construing the evidence to be most favorable
to complainant, it is noted that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes. Accordingly, the final agency
order in Appeal No. 01997247 is AFFIRMED.
Appeal No. 01A01467
Prior to the events at issue above, complainant filed a formal EEO
complaint on April 2, 1994, alleging that the agency had discriminated
against her on the bases of race (Caucasian) and color (white) when,
on December 17, 1993, the quarterly ODIS sample selection was withheld
from her.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing, finding no
discrimination. The agency's final order implemented the AJ's decision.
On appeal, complainant restates arguments previously raised with the AJ.
The agency filed no reply to this appeal.
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. The Commission finds that, in all material respects,
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Assuming for the sake
of argument that complainant has established coverage under Title VII,
the agency met its burden of explanation by showing that its action in
not providing complainant with the quarterly ODIS sample selection
was the result of a policy change that affected all ODIS Clerks, not
just complainant. Further, construing the evidence to be most favorable
to complainant, it is noted that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes. Accordingly, the final agency
order in Appeal No. 01A01467 is AFFIRMED.
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
April 16, 2002
__________________
Date
1It is noted that the two cases were considered together for purposes
of the instant appeal.