0120101099
07-09-2010
Kathryn C. Candell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Kathryn C. Candell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120101099
Hearing No. 470-2009-00043X
Agency No. 1C-401-0029-08
DECISION
On January 11, 2010, Complainant filed an appeal from the Agency's
December 29, 2009, 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., 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 Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency's final order.
BACKGROUND
During the relevant period, Complainant worked as a Mail Processing
Clerk at a Louisville, Kentucky processing and distribution center of
the Agency. Since September 2006, Complainant worked in a modified
position, "patching" mail, due to medical restrictions related to a
work-related injury. Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of race (White), sex
(female), disability (work-related neck and back injuries), age (51 at
time of incident), and reprisal for prior protected EEO activity when it
failed to select her for bid position 70163283 by denying her reasonable
accommodation, which she learned on April 22, 2008. Complainant alleged
that the Agency awarded her the position then took it away, and awarded
the position to a bidder with less seniority.
The Agency conducted an investigation of Complainant's claim. During the
investigation, an agency Operations Support Specialist (S1) stated that
complainant was the senior bidder for the position but was not awarded
it because "[she] did not provide the documentation that she could
perform the duties of the [bid] job within 6 months of the closing of the
bids.1" Affidavit of Operations Support Specialist (Affidavit B), page
2 of 18. S1 added that she is responsible for confirming that employees
provide such documentation. Further, S1 stated that she does not know
Complainant personally and does not have a working relationship with her.
Complainant's Managers stated that they are not responsible for awarding
bid assignments.
At the conclusion of the Agency investigation, the Agency provided
Complainant with a copy of the report of investigation and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing, which the assigned AJ held
on August 13, 2009. After a hearing, the AJ issued a decision finding
"Complainant . . . has not shown that she was subjected to discrimination
. . . by the preponderance of the evidence." AJ's December 23, 2009
Amended Decision (AJ Decision), at 2. The AJ concluded that Complainant
ultimately did not receive bid position 70163283 because she failed
to provide "a certified medical record under seal" once offered the
position and given the opportunity to show that she no longer needed
to work within medical restrictions. AJ Decision at 11. The Agency
subsequently issued a final order adopting the AJ's finding. The instant
appeal from Complainant followed, without substantive comment.
ANALYSIS AND FINDINGS
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 thorough review of the record, we find that the AJ's conclusion
that complainant failed to establish that the Agency's actions were
motivated by her protected classes is supported by substantial evidence
of record.2 The record establishes that the Agency provided Complainant
a modified position since late 2006, and sought to have her confirm that
she could perform duties outside of her past-cited medical restrictions
to qualify for the bid-at-issue, which she did not do. We find that
the AJ correctly determined that the alleged action was not a result of
Complainant's protected classes, but because of medical restrictions that
complainant did not controvert with medical documentation. Accordingly,
we AFFIRM the AJ's decision concluding that complainant failed to
establish discrimination as she alleged, which was fully adopted by the
final agency order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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
July 9, 2010
__________________
Date
1 We note that the record contains a letter from Complainant's physician
(P1), stamped received by the Agency health unit on April 17, 2008.
In the letter, P1 stated, "[Complainant] is restricted to a 251b weight
limit with no continuous lifting . . . can perform seventy-five percent
of the job requirements on all positions [for which she applied]." The
record indicates that the job-at-issue had a 70 lb. lifting requirement.
2 We assume for the purpose of analysis that Complainant is an individual
with a disability. See 29 C.F.R. � 1630.2(g)(1).
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0120101099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101099