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