01A32968
07-07-2004
Jennifer L. Bess, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Jennifer L. Bess v. United States Postal Service
01A32968
July 7, 2004
.
Jennifer L. Bess,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 01A32968
Agency Nos. 1D-231-0003-01 and 1D-234-0079-99
Hearing No. 120-A0-3725X
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. 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 complainant, a Mailhandler at the agency's
Richmond, Virginia Processing & Distribution Center (�facility�), filed
a formal EEO complaint on July 15, 1999 (Agency No. 1D-231-0079-99),
alleging discrimination on the bases of race (White), religion
(Catholic), sex (female), disability (stress due to Post Traumatic
Stress Disorder and Irritable Bowel Syndrome (IBS)) and retaliation
for prior EEO activity, when, on January 28, 1999, she was subjected to
sexual harassment when her medical restrictions were not accommodated
and she was advised by management to report to the facility Annex,
where a co-worker who previously stalked her was working that day.
Subsequently, complainant filed another formal complainant on October 13,
2000 (Agency No. 1D-231-0003-01), alleging discrimination on the bases of
race, color, retaliation and disability when: (1) on five (5) occasions
in August of 2000, her medical documentation was deemed unacceptable,
she was not allowed to work and was charged Absent Without Leave (AWOL);
(2) on December 26, 2000, she was reprimanded by management for taking
too long on her break and she was charged AWOL, as well as being issued a
Notice of Suspension for 7 days; (3) on January 2, 2001, she was escorted
from her work area and told to leave the building; and (4) on January 5,
2001, she was not allowed to enter the postal facility where she worked.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On January 23, 2002, the AJ issued a decision without a
hearing, dismissing the sexual harassment claim from complainant's initial
complaint of discrimination for procedural reasons. In so finding, the
AJ noted that complainant alleged that she was stalked by a co-worker
in mid-1998, but she failed to contact the agency's EEO Counselor
within the required 45-day period and did not offer any explanation
for her failure to seek EEO counseling within the required period.
In addition, the AJ found that complainant failed to establish that
she was an individual with a disability under the Rehabilitation Act.
The AJ found that complainant failed to establish that she has any
impairments which substantially limited any of her major life activities.
On January 31, 2003, pursuant to the agency's motion for a decision
without a hearing, the AJ issued a Memorandum and Order (M & O #1),
granting the agency's motion with respect to the remaining issues in
complainant's first complaint, and with respect to issues (1), (4) and
(5) in complainant's second complaint. As such, the AJ found that the
only issues remaining for hearing were issues (2) and (3) in complainant's
second complaint of discrimination. The AJ then held a hearing which took
place over several days in January and February of 2001. On February
28, 2003, the AJ issued a bench decision finding no discrimination by
the agency on the remaining issues.
Addressing complainant's allegation (2) in her second complaint, the AJ
found that she failed to establish a prima facie case of discrimination
on any alleged basis. Complainant alleged that her supervisor (S1;
Black male; disabled veteran) did not allow her to report for work when
she reported with a copy of a note from the facility health office.
In finding that complainant did not establish a prima facie case of
discrimination on any basis, the AJ noted that she failed to demonstrate
that there were any similarly situated employees not in her protected
groups who were treated differently under similar circumstances. Further,
the AJ found that complainant failed to establish a prima facie case of
retaliation, as there was no evidence that S1 was aware of her prior
EEO activity. The AJ also found that while complainant was not paid
for the time period between August 16 and August 28, 2000, the reason
she was not paid was that she had not reported for work on those days.
The AJ noted that while complainant was sent home on August 16, 2000,
she should have reported for work the next day. The AJ further found that
complainant failed to identify any employees who were treated differently
under similar circumstances. Regarding August 26 and 27, 2000, the AJ
found that S1 was unaware of complainant's prior EEO activity, and thus
she failed to establish a prima facie case of retaliation.
On the issue of disciplining and suspending complainant for taking too
long on her break and leaving work without supervisory approval, the AJ
noted that although complainant had worked for one-half a day on December
26, 2000, S1 deleted complainant's �clock rings� for the day, meaning
that she was not paid for the time she worked. However, the AJ found that
complainant failed to demonstrate who deleted the clock rings. Further,
the AJ found that complainant failed to establish that she was treated
differently than were any other employees under similar circumstances,
and thus she failed to demonstrate a prima facie case of discrimination
or retaliation.<1>
Further, the AJ found that complainant failed to establish a prima
facie case of discrimination regarding the agency's failure to recall
her to work prior to mid-December of 2000. In so finding, the AJ noted
that in large part due to complainant's limitations, she failed to show
that there was work available within her restrictions sooner than when
management called her back to work. The agency's final order implemented
the AJ's decision. Complainant makes no new contentions on appeal,
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 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.<2> We concur
with the AJ's decision to grant the agency's Motion for Summary Judgment
with regard to the three issues in complainant's first allegation of
discrimination, as there is no genuine issues of material fact related
to these allegations. Addressing these allegations, we concur with the
AJ's finding that complainant 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 race,
sex, religion, retaliation or disability. Addressing the allegations
which the AJ considered at the hearing, we find that complainant
failed to establish a prima facie case of discrimination, as there
were no similarly situated employees who were treated differently under
similar circumstances. Further, we concur with the AJ's finding that
complainant failed to establish a prima facie case of retaliation on these
allegations, as there is no evidence that S1 was aware of complainant's
prior EEO activity when the agency took adverse actions against her.
Addressing complainant's allegation of disability discrimination, we find
that even assuming, arguendo, that complainant was an individual with a
disability, she failed to establish that she was discriminated against
when S1 refused to allow her to return to work prior to mid-December
of 2000. In so finding, we concur with the AJ's finding that in large
part due to complainant's limitations at that time, she failed to show
that there was work available within her restrictions prior to the time
when management called her back to work. As found by the AJ, complainant
had lifting restrictions of 25 pounds, which made it difficult for the
agency to find work for her until mid-December of 2000. AJ's Decision
at 10. In addition, we concur with the AJ's finding that complainant
failed to demonstrate that she was treated differently than were other
employees with regard to this issue. We thus discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record 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 7, 2004
__________________
Date
1 The AJ noted that the suspension never went into effect and was
reduced to a Letter of Warning. The AJ also noted that complainant
was ultimately paid for her deleted clock rings. AJ's Decision at 4;
Investigative Report II at 99-100; 134; Agency's Pre-hearing Statement,
Exhibit 14.
2 The Commission concurs with the AJ's finding to dismiss complainant's
allegation of sexual harassment, as it was untimely filed with the
agency's EEO Counselor. A review of the record establishes that
complainant alleged that she was sexually harassed and stalked in 1998,
but did not establish contact with the EEO Counselor within the required
45-day period.