0120123482
01-29-2013
Lois R. Olmo, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Lois R. Olmo,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120123482
Hearing No. 541-2012-00047X
Agency No. 4E-800-0082-11
DECISION
Complainant filed a timely appeal with this Commission, after the Agency did not issue a final action regarding the captioned formal complaint that claimed unlawful 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 accepts Complainant's appeal. See 29 C.F.R. � 1614.504(b) and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant worked as a Supervisor, Customer Services, EAS-17, at the Agency's Colorado Springs, Colorado Processing and Distribution Center (P&DC).
On May 31, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (back), and age (over 40) when:
on January 4, 2011, her request for a detail and lateral transfer to the position of Supervisor, Customer Service, Bulk Mail Entry Unit (BMEU) at the Colorado Springs, Colorado P&DC was denied.
After the investigation of her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Following a hearing held on June 6, 2012, the AJ issued a decision on June 13, 2012, finding no discrimination. The Agency did not issue a final action and the AJ's decision became the final decision.
In her decision, the AJ found that Complainant did not establish a prima facie case of race, sex, disability, and age discrimination.1 The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ found that because Complainant was in a position outside the BMEU, transferring her into the Supervisor, Customer Service position in the BMEU at Colorado Springs was prevented by a hiring freeze. The AJ found that the record indicates a named employee was being accommodated for a medical condition that was deemed to qualify as a disability, and that the Agency had an obligation to accommodate the named employee, unless the action constituted an undue hardship.
The AJ acknowledged that Complainant alleged she was punished because she never complained about her medical condition. However, the AJ found that Complainant never made management aware she was suffering medical problems during the 2009-2010 time period when she was requesting the transfer to the subject position. Moreover, the AJ stated "management is not expected to read the minds of its employees, and here, management appropriately accommodated [a named employee's] known medical condition established by medical documentation."
Furthermore, the AJ found that during the relevant period Complainant never requested accommodation and that the reason the named employee was placed in the BMEU position was that he had a medical condition that required his travel be limited.
The Agency made the following pertinent findings, as detailed below.
Complainant began working for the Agency in 1995, and held craft positions through December 2009. Complainant worked as a Requirements Clerk for several years until her position was abolished in the early 1990's. Complainant then became a Bulk Mail Clerk within the BMEU at the Colorado Springs P&DC. In 2007, Complainant was reassigned from her Bulk Mail Clerk to the position of Mailing Requirements Clerk.
In 2008, Complainant entered into the Associate Supervisor Program (ASP), a management development program designed to allow employees to make the transition from craft positions into management roles. At the time, Complainant entered in the ASP, she entered as "Denver candidate," and not as a "Colorado Springs candidate." During the relevant period, there were no Colorado Springs slots available when Complainant entered into the ASP.
Upon completion of the ASP, Complainant served as a Customer Service Supervisor, EAS 15, at the Denver Bear Valley Station from January 2009 to February 2009. Complainant was then reassigned to the Denver Mile High Station from February 2009 to December 2009. At both Bear Valley Station and Denver High Mile Station, there were no BMEU positions and neither facility was part of the BMEU organization.
In August 2009, Complainant contacted the Manager with the Colorado/Wyoming District BMEU to inquire about any detail opportunities within the BMEU at the Colorado Springs P&DC. At the time of her inquiry, Complainant was a Supervisor at the Denver Mile High Station. Complainant informed the Manager that she believed there was a detail opportunity at the Colorado Springs P&DC because a named supervisor was on detail out of the BMEU. The Manager notified Complainant that he was not sure whether he would be allowed to fill the named supervisor's position with a detail. Complainant alleged that she later learned that two named employees within the Colorado Springs BMEU were alternatively used to cover the named supervisor's position.
In December 2009, Complainant again inquired regarding the detail opportunity at the Colorado Springs BMEU. Complainant was advised that at that time, that the detail opportunity was being filled by employees from within the BMEU staff. Upon completion of the ASP and service in their respective EAS 15 developmental positions, employees are given the opportunity to bid for EAS 17 Customer Service Supervisor positions. If employees are not successful in their application for a position, they are then placed into a vacant EAS 17 supervisor position within a certain geographical distance from their residence. Complainant applied for several EAS 17 positions, primarily in the Colorado Springs and Monument areas, but was not selected. Complainant was then placed into an EAS 17 position at the Colorado Springs P&DC because she lived in Colorado Springs at that time.
Complainant served as a Supervisor of Distribution Operations, EAS 17, at Colorado Springs P&DC from January 2010 through March 2011. In early 2010, the supervisor position in the BMEU that was held by named supervisor became vacant and was posted for applications in March 2010, and again in July 2010. Complainant applied for the subject position through the competitive process and also requested a non-competitive lateral into the position. The record reflects that the subject position was not filled, either competitively or non-competitively due to a freeze on hiring.
Complainant sent an email to a named Manager (M2) who was acting in the position formerly held by Manager, inquiring about the status of her request for a non-competitive lateral into the EAS 17 supervisor position at the BMEU in Colorado Springs. Complainant was advised that the hiring freeze was still in effect. In the fall of 2010, a named employee requested an accommodation related to a medical condition. The employee was a supervisor within the BMEU in Denver and was under the supervision of M2. The employee at that time lived in Colorado Springs and advised management that he had a medical condition which precluded long commutes, and he requested to be reassigned to a location within twenty minutes of commute to his home.
In the fall of 2010, the employee was allowed to serve in a detail at the BMEU in Colorado Springs as an accommodation. The employee was later permanently reassigned to the BMEU in Colorado Springs, effective March 26, 2011. In March 2011, Complainant applied for and was granted reassignment to an EAS 17 Customer Service Supervisor position at the North End Station in Colorado Springs. Complainant decided to make the move to North End Station in order to obtain more work hours and to focus on customer service duties. Furthermore, Complainant voluntarily retired from Agency employment effective December 30, 2011.
The AJ noted during his testimony, M2 stated that when Complainant contacted him in July 2010 requesting a lateral assignment to the BMEU in Colorado Springs, he informed her that it would not be possible due to a 45-day hiring freeze. M2 stated that when Complainant contacted him again for a reassignment, he informed her that there was still a freeze and that the vacancy position had not been filled. M2 testified that during the relevant period, the named employee transferred from the Agency's Denver station into the BMEU in Denver before the hiring freeze.
M2 testified that as a result of the named employee's military service record, the named employee "contracted a gastrointestinal disease that had major complications while he was in the service, and though he had received treatment and it had subsided some what, while he was in the Postal Service - - when he transferred from the military into the Postal Service, he had flair ups occasionally. And then, as the BMEU district manager, [named employee] approached me and indicated that his condition had become severe enough, and driving aggravated it immensely. He brought documentation in from his physician indicating that it would be best if he didn't drive at all, but minimal amount would be preferable to have his condition improve. As a result of that, [named employee] was in the group of BMEU supervisors, there was that opening in Colorado Springs, and so based on medical need, because it was either that [named employee] was going to have to be very close to home or not be able to work at all. So I put him into the Colorado Springs Business Mail Entry Unit because it's seven or eight miles from his house."
M2 stated that at that time Complainant had never indicated or requested a detail into the BMEU in Colorado Springs as a medical accommodation.
Complainant, on appeal, argued that the Agency did not follow its procedures in filling the subject BMEU position. For instance, Complainant stated "there is no provision in any postal regulation that permit[s] the selection of individuals for reassignment from the BMEU units before considering applicants from outside the office where the vacancy exists even if the vacancy is a detail."
Complainant further argued that there was a preselection and that the named employee was given "significant consideration based on his so-called medical condition, which had already cleared up when he was selected for the vacancy." Finally, Complainant argued that she was more qualified than the employee because "she had almost thirty years of Postal service experience. She had almost 18 years of BMEU experience...she is a black female, short in stature, extremely overweight and probably not a good feature to have met with the mailing public who brought their bulk mail to the facility! [M2] wanted a 'good old boy,' a friend of the former Denver BMEU manager, who probably talked [M2] into requesting a reassignment through submission of a medical note but he did not submit a request in writing as required by Postal Regulations."
The instant appeal followed.
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision 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.2
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
January 29, 2013
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
2 On appeal, Complainant does not challenge the June 23, 2011 partial dismissal issued by the AJ regarding another claim (that she was discriminated against on the bases of race, sex, disability, and age when since approximately December 2009, July 27, 2010 and December 4, 2010, her requests for a detail and lateral transfer to the position of Supervisor Customer, BMEU at the Colorado Springs P&DC have been denied). Therefore, we have not addressed this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
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