Linda English, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionMay 8, 2007
0120062413 (E.E.O.C. May. 8, 2007)

0120062413

05-08-2007

Linda English, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Linda English,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 01200624131

Agency No. 1H-301-0027-05

Hearing No. 110-A5-0389X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's January 24, 2006 final order concerning

her equal employment opportunity (EEO) complaint alleging employment

discrimination in violation of Section 501 of the Rehabilitation Act of

1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and Title

VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �

2000e et seq. Complainant, a Mail Processing Clerk, at the agency's

Processing and Distribution Center, in Atlanta, Georgia, filed a formal

complaint in which she alleged that the agency discriminated against

her on the basis of disability2 and in reprisal for prior protected EEO

activity [arising under the Rehabilitation Act and Title VII] when:

(1) On January 15, 2005, her supervisor assigned her to secure and monitor

employees as they enter and exit the entrance post, which violated her

medical restrictions;3

(2) On an ongoing basis up through April 9, 2005, her supervisor denied

her training in Express Mail; and

(3) On January 13, 2005, her supervisor removed her permanent light-duty

letter from her file in Labor Relations.

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.4

After a review of the record in its entirety, it is the decision of

the Equal Employment Opportunity Commission to affirm the final agency

order because the Administrative Judge's ultimate finding, that unlawful

employment discrimination was not proven by a preponderance of the

evidence, is supported by the record.5

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

May 8, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2 Complainant states that she has osteoarthritis.

3 Complainant contends that at a Town-Hall meeting, the Plant Manager

stated that only ill/injured, light/limited duty employees would be used

to monitor entrances to the facility.

4 For purposes of this decision, we assume arguendo that complainant is

disabled within the meaning of the Rehabilitation Act.

5 In finding no discrimination, we note that substantial evidence in the

record supports the finding that the assignment to secure and monitor

employees as they enter and exit the entrance post, did not violate

complainant's medical restrictions. Complainant asserts that the job

required sitting for prolonged periods, which violated her restrictions,

however, there is no evidence that complainant was prohibited from

standing up every so often when performing this assignment. The record

evidence indicates more generally that complainant's greatest concern

was about her safety when performing this assignment. However,

she has not produced medical evidence to show that this work was so

unsafe for her, that she needed to be excluded from it as a form of

reasonable accommodation. To the extent that complainant argues that

only assigning ill/injured and light/limited duty employees to this job

constitutes discriminatory disparate treatment, we note that the record

evidence fails to indicate that management's decision was motivated by

disability-based animus.

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0120062413

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036