0120065344
12-18-2008
Jean S. Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Jean S. Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 01200653441
Agency No. 1K-221-0030-05
DECISION
On September 25, 2006, complainant filed an appeal from the agency's
September 7, 2006 final decision 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., 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 deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final decision.
BACKGROUND
During the period at issue, complainant worked as a Full-Time Clerk
at the agency's Northern Virginia Processing & Distribution Center in
Merrifield, Virginia. Complainant had been on light duty since at least
December 2004, and had been assigned to the "nixie" table in order to
comply with her medical restrictions. In June 2005, her supervisor
reassigned her to the manual letter case, to case letters, as it would
be within her medical restrictions. Complainant submitted a request to
the agency on June 28, 2005, that she be assigned to the "nixie" table
for her light duty assignment. Complainant's request for that specific
work assignment was denied and she was assigned to manually case mail.
On September 8, 2005, complainant filed the instant EEO complaint.
Therein, complainant claimed that she was discriminated against on the
bases of race (Asian), national origin (Korean), sex (female), color
(yellow), disability (physical), age (58), and in reprisal for prior
protected activity when:
1. in June 2005, and continuing, she was not provided with an
accommodation consistent with her medical restrictions.
On September 13, 2005, complainant contacted an EEO Counselor and
amended her complaint to include the following two claims:
2. on July 26, 2005, her supervisor questioned her about taking a break;
and
3. on July 26, 2005, her supervisor threatened her with discipline for
not following her instructions.
On September 23, 2005, the agency issued a letter of Partial Acceptance /
Partial Dismissal of Formal EEO Complain. The agency accepted claim 1
for investigation and dismissed claims 2 and 3. In its Partial Dismissal
letter, the agency dismissed claims 2 and 3 for untimely EEO Counselor
contact, under 29 C.F.R. � 1614.107(a)(2), as the time between the alleged
discriminatory incident on July 26, 2005 and the date of her EEO Counselor
contact exceeded 45 days. Alternatively, the agency also dismissed claims
2 and 3 for failure to state a claim under 29 C.F.R. � 1614.107(a)(1).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested a
hearing and the parties engaged in the discovery process pursuant to the
AJ's Acknowledgment and Order. Disputes arose in the discovery process,
which necessitated the intervention of the AJ, who issued her first
Order on June 13, 2006, denying the complainant's Motion to Compel and
granting the agency's Motion to Compel. The AJ Ordered complainant to
respond to the agency's discovery requests by June 30, 2006. On July 6,
2006, the agency filed a Second Motion to Compel and for Sanctions, based
on complainant's failure to comply with the AJ's June 13, 2006 Order.
On August 4, 2006, the AJ granted the agency's Second Motion to Compel,
and dismissed the complainant's request for a hearing. The AJ remanded
the complaint to the agency, and the agency issued a final decision
pursuant to 29 C.F.R. � 1614.110(b).
In its final agency decision (FAD) the agency found no discrimination.
With respect to a disparate treatment analysis of complainant's claim on
the bases of race, color, national origin, sex, and age, the agency found
that complainant had failed to put forth a prima facie case, because
she had not shown that she had been subjected to an adverse action,
and she had not shown that similarly situated employees, not of her
protected bases, had been treated more favorably than her. The agency
found that complainant had not established a prima facie case of reprisal
discrimination because she had not shown that the responsible management
officials were aware of her prior protected EEO activity, that she had
been subjected to an adverse action, or that she had established a nexus
between that prior EEO activity and the actions taken by management in
the current complaint.
Assuming arguendo that complainant had established her prima facie case
on the bases of race, color, national origin, sex, age and reprisal,
the agency found that it had presented legitimate, nondiscriminatory
reasons for its actions, namely, that complainant's light duty request
was granted, although it was not for her preferred light duty assignment.
The agency concluded that complainant had not shown the agency's reasons
to be pretext for discrimination.
Regarding the basis of disability and failure to accommodate,
the agency concluded that complainant was not an "individual with
a disability" as defined by the Rehabilitation Act as she had not
proven that she was substantially limited in a major life activity,
or that the agency regarded her as disabled. Assuming complainant was
a qualified individual with a disability, the agency found that it had
not failed to accommodate complainant as it provided work within her
medical restrictions. The agency also concluded that complainant had
not been subjected to disparate treatment on the basis of disability,
for the aforementioned reasons.
Complainant filed the instant appeal, however, she did not submit any
argument in support of her appeal. The agency submitted a brief in
opposition to complainant's appeal of the final agency decision, which
generally reiterated the findings of the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Initially, we find that the agency's Partial Acceptance / Partial
Dismissal letter correctly found that complainant was untimely with her
EEO Counselor contact for claims 2 and 3, and we affirm the dismissal of
those two claims. After a review of the hearing record, we also affirm
the AJ's dismissal of complainant's hearing request and her remand of
the complaint to the agency for a final agency decision on the record.
After a thorough review of the record, as well as the argument submitted
by the agency in opposition to the appeal, we find that the agency's
conclusion that complainant has not shown that she was discriminated
against based on her race, color, national origin, sex, age or in reprisal
for previous EEO activity was correct. We also find that the agency's
conclusion that it had not failed to accommodate complainant's medical
restrictions was correct.2 Therefore, we AFFIRM the agency's finding
of no discrimination.
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
12-18-08
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 We assume, without finding, for the purposes of analysis only, that
complainant is an individual with a disability.
??
??
??
??
2
0120065344
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120065344