01a44621
11-01-2004
Luewanda Young, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Luewanda Young v. United States Postal Service
01A44621
November 1, 2004
.
Luewanda Young,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A44621
Agency No. 1-H-374-0041-00
Hearing No. 250-2002-8101X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that, during the relevant period, complainant was
employed as a Time and Attendance Clerk at the agency's Bulk Mail
Center in Memphis, Tennessee. Complainant filed formal EEO complaints
on December 18, 2000, and March 19, 2001, alleging that the agency had
discriminated against her on the bases of race (African-American), sex
(female), disability (neck, shoulder, arm-hand tendinitis, cervical
strain), and in reprisal for prior EEO activity when:
(1) on or about August 1, 2000, she discovered that she had been charged
absence without official leave (AWOL) for a previous absence and told
not to return to work until cleared by the nurse;
on August 31, 2000, she was issued a Letter of Warning (LOW);
on September 13, 2000, she was not provided transportation to the
emergency room and instructed to take leave;
on September 15, 2000, after working 2� hours, her supervisor (S1:
African-American male, no known disability, no known prior EEO activity)
advised her that he did not have light duty work for her to perform
and she was told to leave the building;
on October 28, 2000, she was unable to clock in, was denied her request
to see a union representative and, she was ordered off the premises;
on December 27, 2000, S1 removed her time card so that she could not
punch in and when she did get in he ordered her to leave the office
because he stated there was no work for her to do in timekeeping
because she could not lift her arm and he ordered her to report to mail
processing where she was put to work sorting mail;
on August 17, 2000, S1 allegedly threatened her by saying �I'm going
to do something to you� or words to that effect; and,
on December 27, 2000, S1 allegedly hid her timecard, preventing her
from clocking in and later advised her that she was being reassigned
temporarily to mail processing because of her physical limitations.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant did not satisfy her burden of
showing that she was subjected to unlawful employment discrimination.
Specifically, the AJ determined that complainant failed to establish a
prima facie case of race and/or sex discrimination. The AJ found that
complainant failed to demonstrate that similarly situated employees
not in complainant's protected classes were treated differently under
similar circumstances. The AJ also determined that complainant failed
to establish a prima facie of reprisal discrimination. The AJ found
that complainant did not show there was a causal connection between the
protected activity and the adverse employment actions. The AJ noted
that there was no evidence that S1 was aware of any complaint having
been filed by complainant. The AJ further determined that complainant
did not establish a prima facie case of disability discrimination.
On June 4, 2004, the agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency did not
file a response.
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.
Thus, on appeal to this Commission, the burden is squarely on the party
challenging the AJ's decision to demonstrate that the AJ's decision is
erroneous. See EEO Management Directive-110, at 9-17 (Rev. 11/9/99).
In this case, this means that complainant has the burden of pointing
out to the Commission where and why the AJ's findings are erroneous as
a matter of law. Cf. id. (pointing out that �[t]he appeals statements
of the parties, both supporting and opposing the [AJ's] decision,
are vital in focusing the inquiry on appeal . . .�). In our view,
complainant has not done so.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health
for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(analyzing a disparate treatment claim under the Rehabilitation Act);
and, Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission concludes
that the AJ's findings of fact are supported by substantial evidence in
the record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
The Commission agrees with the AJ's conclusion that that complainant
failed to establish by preponderant evidence that any of the agency's
actions were in reprisal or motivated by race, sex, or disability.
Under these circumstances, we discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we affirm the agency's final order.
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
November 1, 2004
__________________
Date