0120065332
05-29-2008
Jana R. Hankins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jana R. Hankins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200653321
Agency No. 4G752015005
Hearing No. 310a60039x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 22, 2006 final order concerning her equal
employment opportunity (EEO) complaint alleging 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.
In an EEO complaint filed on March 29, 2005, complainant, a rural
letter carrier, alleged that the agency discriminated against her on
the bases of sex (female) and disability (mental) when she was denied
advanced sick leave. The record establishes that, in November 2004,
complainant verbally requested advanced sick leave for upcoming surgery
from the official-in-charge (OIC) while her supervisor was out. The OIC
provided a statement that she verbally told complainant that the advanced
sick leave would not be approved. The OIC indicated that she felt that
because of complainant's prior leave usage, she would be unable to pay
back the advanced leave.2 On November 16, 2004, complainant submitted
leave slips to her supervisor for the time period she would be off
for surgery, requesting "pending sick leave" on the forms. However,
her supervisor approved the leave as "leave without pay" rather than
advanced sick leave. It should be noted that the record does not contain
any medical information to support the leave requests. It is not clear
from the record what kind of surgery complainant had.3
A review of the file indicates that, in 2004 and 2005, complainant used
72 hours of sick leave and 696 hours of leave without pay, of which 192
hours were for November and December 2004. In addition, an examination of
complainant's leave record indicates she also used leave without pay in
October 2004, as well as other occasions in November 2004. Complainant's
supervisor indicated that it would take complainant at least two years
to pay back the advanced leave, if she did not use any sick leave during
that period.4
Information in the record indicates the OIC approved advanced sick leave
for male and female employees.
After complainant's allegations of discrimination were investigated
by the agency, she requested a hearing before an EEOC Administrative
Judge (AJ). On August 14, 2006, the AJ issued a decision by summary
judgment in favor of the agency, finding agency management articulated a
legitimate, nondiscriminatory reason for its decision, which complainant
failed to prove was a pretext for discrimination. On August 22, 2006,
the agency issued its final order, fully implementing the AJ's decision.
The instant appeal followed.
On appeal, complainant asserts she provided medical documentation to
support her request for advanced sick leave, but that the agency did not
include it in the record. The Commission notes that complainant does
not explain what the medical information that she provided contained,
nor does she submit copies of such with her appeal. The Commission finds
that even assuming complainant is a person with a disability, she has
not shown that the agency's reasons for denying her advanced leave were
a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 (Z0408)
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
May 29, 2008
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 Complainant had been absent from work from May to August 2004 due to
an episode of depression. She returned to work with no restrictions.
3 In her appeal, complainant states that the surgery was unrelated to
her impairment and the request for advanced leave was not a request for
reasonable accommodation.
4 In its motion for summary judgment, the agency notes that complainant
stopped working in April 2005.
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0120065332
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065332