01981213
11-21-2000
Karen V. Selby, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area), Agency.
Karen V. Selby v. United States Postal Service (Alleg./Mid -Atl. Region)
01981213
November 21, 2000
.
Karen V. Selby,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Mid-Atlantic Area),
Agency.
Appeal No. 01981213
Agency No. 1D-235-0001-96
Hearing No. 120-96-5698X
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint
of unlawful employment discrimination in violation of 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 basis of physical disability (back problem) when, as a Transitional
Employee (TE), she received a termination notice due to her irregular
attendance on November 29, 1995, effective November 27, 1995. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that complainant, a TE at the agency's Newport
News, Virginia Remote Encoding Center facility, filed a formal EEO
complaint with the agency on January 8, 1996, 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 (AJ).
Determining that there was no dispute as to any material fact and that
there was sufficient information on which to base a decision, however,
the AJ issued a decision without a hearing, finding no discrimination.
While the AJ queried whether complainant was an individual with a
disability, the AJ concluded that, assuming arguendo, complainant
established that she suffered from a disability, the agency articulated
legitimate, nondiscriminatory reasons for terminating her, namely,
that inasmuch as complainant failed to report for work for over two
months without providing medical documentation to cover her absences,
as required by agency regulations, the agency reasonably assumed that she
had abandoned her employment. The AJ determined that complainant failed
to show that this legitimate, nondiscrimination explanation amounted
to a pretext to mask discriminatory motives. The AJ also found that
assuming complainant was a member of a protected group, she failed to
meet any of the remaining criteria for establishing a prima facie case
in a termination action, namely, that she was meeting the legitimate
expectations of her employer and that she was discharged without cause
or that she was singled out for termination while similarly situated
employees not in her protected group were treated more favorably.
Specifically, the AJ found that while complainant had mentioned to her
supervisor that she might need back surgery, she failed to contact
her supervisor or submit any medical documentation during her two
month absence. In addition, complainant did not submit any medical
documentation or argument would support the notion that from September
to November 1995, she was unable to notify the agency as to the status
of her condition, when she would report for duty, or why she was absent
without leave (AWOL). The agency's final decision concurred with the
AJ's recommended decision finding no discrimination.
On appeal, complainant contends that at the time she was terminated,
the agency was �completely aware� of her condition and had advised her
that her job would not be jeopardized by her illness. She proffers her
10 percent disability rating from the Department of Veterans Affairs
(VA) and the ruling by the Social Security Administration that she
was disabled beginning September 20, 1995 (the last day she worked for
the agency) as evidence that she is entitled to the protection of the
Rehabilitation Act. She states that she had submitted two motions to
compel the agency to send her documentation that would support her case,
but that the AJ did not grant her motions. Complainant does not specify
such documentation or indicate why it would support her contentions. The
agency did not reply to complainant's contentions on appeal.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
had been AWOL between September 27, 1995, and the date of her removal.
While she subsequently submitted medical documentation establishing that
she had a herniated disc, she did not submit any medical documentation
to the agency during the time in question or otherwise explain why
she was not reporting to work. As to her motion to compel discovery
documentation from the agency which the AJ did not grant, none of the
requested documentation (such as documentation regarding the hiring of
persons with 30 percent disability ratings from the VA) appears to be
relevant to establishing that complainant was subjected to discrimination
when she was terminated. Therefore, we find no indication that the AJ
acted improperly in not granting her motion to compel. While complainant
had mentioned to her supervisor that she may need surgery, she did not
contact agency officials or provide required documentation during the
time in question and did not thereafter establish that her impairment
was such that it rendered her incapable of complying with the agency
regulations regarding notification.
In view of the above, we discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
complainant's contentions on appeal, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
decision.
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
November 21, 2000
Date
1The 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, where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.