01995347
12-20-2001
Marcia J. McNeil, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Marcia J. McNeil v. United States Postal Service (Western Area)
01995347
December 20, 2001
.
Marcia J. McNeil,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01995347
Agency Nos. 1I-531-0005-98; 1I-531-0139-98
Hearing Nos. 260-99-8083X; 290-99-8113X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaints 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.<1> The appeal is accepted pursuant to
29 C.F.R. � 1614.405.
In her first complaint (1I-531-0005-98), complainant alleges she was
discriminated against on the bases of disability (hearing impairment)
and reprisal for prior protected activity under Title VII and the
Rehabilitation Act, when on August 12, 1997, she was denied an extended
leave of absence.
In her second complaint (1I-531-0139-98), complainant alleges she was
discriminated against on the bases of sex (female), race (Caucasian),
color (white), disability (hearing impairment), and in reprisal for prior
protected activity under Title VII and the Rehabilitation Act, when on
April 10, 1998, she was harassed by her supervisor, and on May 8, 1998,
she received a 14-day suspension for failing to follow instructions.
For the following reasons, the Commission affirms the agency's final
decision.
The record reveals that complainant, a Mailhandler at the agency's
Milwaukee, Wisconsin facility, filed formal EEO complaints with the
agency on November 3, 1997 and July 31, 1998, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigations, complainant received a copy of the investigative
reports and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing the AJ issued a decision finding no discrimination.
The agency's final decision implemented the AJ's decision. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final decision.
The AJ concluded that assuming, arguendo, complainant established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not
show were pretextual. In reaching this conclusion, the AJ found that
with regard to complainant's allegation that she was denied an extended
leave of absence on August 12, 1997, she failed to show that the agency's
actions were based upon retaliatory or discriminatory motive. The record
reflects that complainant requested an extended leave of absence to
attend university on two separate occasions. Both requests were denied.
The agency states that the requests were denied as a result of the demands
on the agency and the need for all workers to be in active duty status.
Further, the Postmaster of complainant's post office testified that he
has never approved an extended leave request for educational purposes.
The AJ found that complainant failed to show that these legitimate,
non-discriminatory reasons were mere pretext to mask retaliatory motive
or discriminatory animus toward complainant's disability.
As to complainant's claims that she was harassed by her immediate
supervisor (S1) on April 10, 1998, and was issued a fourteen-day
suspension on May 8, 1998, the AJ found no discrimination. According
to testimony, complainant and S1 had a verbal altercation on April
10, regarding complainant's work assignment. As a result of this,
complainant was told to report to her second line Supervisor's office
(S2) where two union stewards were waiting. The record reflects that
complainant was then informed that she would be disciplined for failure
to follow S1's orders. On May 8, 1998, complainant was again called to
S2's office where she was issued a fourteen-day suspension for failure
to follow instructions on April 10, 1998. The agency states that the
fourteen-day suspension was appropriate progressive discipline, in
that she had refused a direct order from S1 and had already received a
letter of warning and a four-day suspension for other performance issues.
The AJ concluded that complainant did not present any persuasive evidence
that the reasons proffered by the agency for its actions were a pretext
for sex, race, color, disability, or reprisal discrimination.
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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Assuming that
complainant established that she was a qualified individual with a
disability, we find that she failed to present evidence that any of
the agency's actions were in retaliation for her prior EEO activity
or were motivated by discriminatory animus toward complainant's sex,
race, color, or disability. We discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final decision.
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
December 20, 2001
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.