07A20045
03-13-2003
Mary A. Schake, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary A. Schake v. United States Postal Service
07A20045
March 13, 2003
.
Mary A. Schake,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A20045
Agency No. 4C-150-005-00
DECISION
The agency filed a timely appeal with this Commission concerning
complainant's equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. In the underlying complaint, filed
on March 16, 2000, complainant, a clerk at the agency's Greensburg
Mail Processing Center in Youngwood, Pennsylvania, alleged she was
discriminated against on the bases of age (date of birth: April 16, 1952)
and disability (panic disorder, anxiety, depression) when she was denied
a light duty work assignment on or about February 21, 2000.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding that complainant failed to establish that she was subjected to
age or disability discrimination. In so finding, the AJ first noted
complainant did not provide any evidence that raised an inference of age
discrimination. The AJ then found that although complainant established
a prima facie case of disability discrimination, the agency provided
her with a reasonable accommodation and therefore did not subject her
to discrimination on the basis of disability.
On October 26, 2001, the agency issued a final order stating that it
would implement the Administrative Judge 's finding of no discrimination,
but would appeal because it disagreed with the Administrative Judge's
predicate legal determination that complainant established a prima facie
case of disability discrimination. The agency's appeal was docketed
as EEOC Appeal No. 07A20045. In its brief, the agency contends that
complainant is not an individual with a disability within the meaning
of the Rehabilitation Act and therefore did not establish a prima facie
case of disability discrimination.
In response, complainant argues that the agency's appeal should be
dismissed because in its final order the agency agreed to fully implement
the AJ's finding of no discrimination. Complainant further contends
that, assuming that agency's appeal is accepted, the AJ's finding that
she established a prima facie case of discrimination on the basis of
disability is supported by substantial evidence. Complainant did not
file an appeal of the agency's decision to implement the AJ's finding
of no discrimination.
Pursuant to 29 C.F.R. � 1614.110(a), if the agency's final order "does
not fully implement the decision of the administrative judge, then the
agency shall simultaneously file an appeal in accordance with � 1614.403
and append a copy of the appeal to the final order." In the instant
case, we find that the agency did not have grounds for appeal under this
provision, since the agency's final order adopted the Administrative
Judge's finding of no discrimination. An appeal is properly taken by an
agency when it declines to implement the Administrative Judge's finding
or any portion of the order of relief. The agency has, in its appeal,
asked the Commission to review solely whether or not the Administrative
Judge was correct in determining that complainant was an individual with
a disability under the Rehabilitation Act and therefore established a
prima facie case of discrimination, notwithstanding that the agency has
already decided to implement the Administrative Judge's finding of no
discrimination. Accordingly, the purpose of the appeal is not to address
the ultimate disposition of the complaint, but to establish a record with
respect to a particular predicate legal conclusion. The Commission's
regulations do not authorize such appeals by the agency. See Vacchiano
v. United States Postal Service, EEOC Appeal Nos. 07A10042 & 01A12188
(March 4, 2003). Accordingly, the agency's appeal is dismissed.
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
March 13, 2003
Date