01A13540
07-29-2002
Janice K. Fitzgerald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Janice K. Fitzgerald v. United States Postal Service (Western Area)
01A13540
July 29, 2002
.
Janice K. Fitzgerald,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A13540
Agency No. 4E-800-0076-97
Hearing No. 320-99-8313X
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that at the relevant time, complainant was employed
as a City Carrier at the agency's Englewood-Arapohoe East Station in
Denver, Colorado. The record further reveals that complainant arrived
at work on August 9, 1995, wearing an open-toed shoe on one foot due to
a toe fracture. Complainant's supervisor (S1) instructed complainant to
leave the work room floor because wearing open-toed shoes is a violation
of agency policy. (Hearing Transcript, Agency Exhibits 1 and 2). After
being informed that she needed to leave the workroom floor, complainant
asked to see a union steward and was told that she could see the steward
if she filled out a leave form and got off of the floor as quickly as
possible. When complainant failed to follow S1's orders, S1 escorted
complainant out of the building. Later that evening, complainant was
informed that her start time would be changed from 7:45 am to 2:00 pm,
beginning the following day, August 10, 1995. On August 10 complainant
failed to arrive at her new start time, instead clocking in at 7:45,
again in an open-toed shoe. That morning, complainant and management
officials attended a settlement meeting on an issue unrelated to the
instant complaint, at the conclusion of which, complainant suggested that
they then hold a Union Management Pairs (UMPS) meeting, but was told the
meeting would not be held at that time. S1 then sent complainant home
one hour and 15 minutes early, again being told that she could not wear
an open-toed shoe on the workroom floor.
Believing she has been the victim of discrimination, complainant filed
a formal EEO complaint on March 6, 1997, alleging that the agency had
discriminated against her on the bases of sex (female), disability
(cumulative trauma disorder, major depression), age (D.O.B. September
27, 1950), and reprisal for prior EEO activity when she was not provided
with an UMPS meeting, when S1 refused to allow her to finish her shift,
and when S1 changed her start time from 7:45 am to 2:00 pm.
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.
The AJ concluded that with respect to complainant being denied an UMPS
meeting by S1, complainant failed to establish a prima facie case on
any basis in that she was not subject to any adverse employment action.
The AJ found that no UMPS meeting had been scheduled for that day, and
complainant presented no evidence regarding how she had been harmed by
management's refusal to have the UMPS meeting on that particular date.
The AJ found that the denial of the UMPS meeting on August 10, 1995, did
not alter the terms or conditions of her employment and was, therefore,
not an adverse employment action.
The AJ also concluded that assuming, arguendo, complainant established
a prima facie of sex, age, disability, and reprisal discrimination
as to S1 not allowing her to finish her shift and having her start
time changed, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that S1 sent complainant home because she was wearing open-toed shoes
in violation of agency policy. While complainant argued that S1 had
allowed other employees to wear open toed shoes, the AJ found that the
evidence of record failed to support complainant's contention. The AJ
also found that S1 escorted complainant out of the building on August
9 as a result of complainant failing to leave the station after being
directed to do so by S1. Further, the AJ found that complainant was not
scheduled to work at 7:45 am on August 10, and that complainant failed
to show that S1 had allowed any other employees to work when they were
not scheduled. With regard to having her start time changed, the AJ
found that S1 changed complainant's duty hours because complainant had
been approved for light duty, and the light duty task of answering the
phones was only available in the afternoon. The AJ found that complainant
failed to establish that these legitimate, nondiscriminatory reasons were
a pretext for discriminatory or retaliatory animus toward complainant's
protected classes.
Finally, the AJ found that complainant failed to show that she had
been subject to hostile work environment discrimination as the actions
complained of do not rise to the level of actionable harassment under
Commission regulations. The agency's final order implemented the AJ's
decision. On appeal, complainant reiterates her contention that she
was subject to unlawful discrimination, and calls into question that
credibility of management officials.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Assuming arguendo that complainant is an individual with a disability,
we find that she failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or
were motivated by discriminatory animus toward complainant's sex,
age, or disability, or that the agency's refusal to permit her to
wear an open-toed shoe on the workroom floor constituted a denial
of a reasonable accommodation. See Pesce v. United States Postal
Service, EEOC Request No. 05880885 (March 17, 1989), aff'd EEOC Request
No. 05890725 (September 15, 1989). Thus, we discern no basis to disturb
the AJ's decision. 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 (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
July 29, 2002
__________________
Date