01a04451
02-27-2001
Jacqueline Y. Watts, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area), Agency.
Jacqueline Y. Watts v. United States Postal Service
01A04451
February 27, 2001
.
Jacqueline Y. Watts,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Mid-Atlantic Area),
Agency.
Appeal No. 01A04451
Agency No. 1C-441-0044-99
Hearing No. 220-99-5228X
DECISION
Complainant timely initiated an appeal from the agency's final order
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.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405.<2> Complainant alleges she was discriminated against
on the bases of disability (right leg) and in reprisal for prior protected
activity arising under Title VII when in December 1998 she discovered that
another employee (E1) had not been converted into Part-Time Flexible (PTF)
status whereas she had been converted when she was offered reassignment
to a permanent limited duty position in January 1997. For the following
reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a PTF Clerk at the agency's John
O. Holly facility in Cleveland, Ohio, filed a formal EEO complaint on
February 9, 1999, 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. Three witnesses and complainant testified
at the hearing. None of the three witnesses knew complainant, nor were
any of them able to testify as to why complainant was involuntarily
converted to PTF status while E1 was not. Following a hearing, the
Administrative Judge issued a decision finding no discrimination which
the agency adopted in its entirety. On appeal, complainant restates
arguments previously made at the hearing, and the agency requests that
we affirm its final order.
Pursuant to 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
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An Administrative Judge's conclusions of law are subject to a de novo
standard of review.
Regarding the alleged retaliation, we find that complainant did
not establish that any of the management officials she identified as
responsible for the alleged retaliation were aware of her prior protected
activity. Thus we conclude that complainant failed to establish a
prima facie case of retaliation. Regarding complainant's claim of
disability discrimination, assuming without finding that complainant
is a qualified individual with a disability within the meaning of the
Rehabilitation Act, we find that the agency articulated a legitimate,
non-discriminatory reason for its action, namely that E1 was not converted
to PTF status because when EI was offered reassignment to a permanent
limited duty position, all Injury Compensation Offices were instructed by
Headquarters not to "rehab Letter Carriers into the Clerk craft as PTFs"
until Headquarters determined how to interpret the Snow Arbitration Award.
Complainant proffers no evidence that this was not the real reason for
the agency's action. Thus, we find that complainant has failed to prove
pretext and that the Administrative Judge's finding that discriminatory
intent did not exist is supported by substantial evidence.<3>
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 27, 2001
__________________
Date
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.
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 We note that the Administrative Judge erred when he found that
complainant could not compare herself to another "disabled" employee
because they are members of the same protected group. The Commission
notes that differential treatment of those with different disabilities,
absent justification, can be actionable under the ADA. See Olmstead
v. L.C. by Zimring, 527 U.S. 581 (1999).