0120063348
11-21-2007
Noreen Torres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (N.Y. Metro Area), Agency.
Noreen Torres,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(N.Y. Metro Area),
Agency.
Appeal No. 01200633481
Agency No. 1B-061-0019-05
Hearing No. 160-2005-00660X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 11, 2006 final decision concerning
her equal employment opportunity (EEO) complaint alleging 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 subject to our de novo review under 29 C.F.R. �
1614.405(a). Complainant alleged that the agency discriminated against
her on the bases of race (Hispanic2), national origin (Hispanic), sex
(female), disability, and in reprisal for prior protected EEO activity
(arising under Title VII and Rehabilitation Act) when she learned that
her request for light duty would no longer be accommodated and that she
would have to return to full duty on her regular tour, effective May 4,
2005.3
At the conclusion of the investigation, the agency provided complainant
the option of choosing to have a hearing before an EEOC Administrative
Judge (AJ)or having the agency issue a decision without a hearing (FAD) .
Complainant elected to have a hearing; however, the AJ assigned to the
case denied the request as a sanction for her failure to comply with his
January 25, 2006 Order. That Order granted the agency's Motion to Compel
and instructed complainant to submit supplemental discovery responses to
the agency's interrogatories and/or document requests. The Order also
warned complainant that failure to comply would result in the dismissal
unless good cause was shown. Therefore, when complainant did not fully
comply with the agency's discovery request, the AJ issued complainant
an Order to Show Cause. According to the AJ, complainant's response
lacked sufficient factual or legal substance showing "good cause."
The AJ also found complainant's actions to be a "direct challenge to
the Commission's authority to determine the appropriate particulars
and/or parameters of discovery matters with the hearing process."
Sanction Order at 3. Consequently, the AJ remanded the case to the
agency for further administrative processing.
In its final decision, the agency found no discrimination. The agency
determined that complainant had not established that she is an individual
with a disability under the Rehabilitation act because she did not
fully explain how her alleged impairment (which she refused to specify)
substantially limited her ability to lift, walk or sleep. Nevertheless,
assuming she had met this burden, the agency found that it had adequately
accommodated her. Complainant was not taken off light duty and she never
returned to full duty status. She had been returned to her original tour
of duty, Tour 1, but she continued to be accommodated with light duty
work. As for her retaliation claim, the agency found that she had not
established a prima facie case of retaliation because she had not shown a
causal link between her prior protected activities and the reassignment.
On appeal, complainant argues that the AJ's decision denying her
hearing request and the agency's decision finding no discrimination are
in error. Complainant states that the AJ abused his discretion and
violated her constitutional right of due process under the First and
Fourth Amendments. She further argues that she properly established
that she was an individual with a disability and that if the agency
had any legitimate doubt about her condition, it could have sent her
for a fitness for duty examination. She insists that she was treated
differently than other employees, and, with regard to her retaliation
claim, she states that she met her prima facie burden of proof because
no other similarly situated employee was removed from Tour 2 and placed
in Tour 1. Moreover, the causal link is evident, she argues, because
after 120 days of working on Tour 1, she suffered an injury at work and
the agency indefinitely suspended her without pay as a result of her
injury.4 In response, the agency reiterates its reasons for finding no
discrimination and requests that we affirm its final decision.
Having reviewed the record, we find no error in either the AJ or the
agency's actions. To begin, the AJ properly dismissed the hearing
request under the particular circumstances of the case. The AJ gave
clear instructions to complainant on the information he required to
conduct a hearing. See Scheduling Order. The AJ also gave complainant
sufficient time to comply with his instructions and comply with the
agency's requests. See id. However, complainant chose to flout the
AJ's instructions believing she knew better than the AJ what information
would be appropriate for the hearing on her case. Given her actions,
it was properly within the AJ's authority to dismiss the hearing request
and remand the matter to the agency as an AJ is afforded broad discretion
in the conduct of the hearing and related proceedings. See 29 C.F.R. �
1614.109.
Turning now to the agency's analysis of the merits of her case,
we agree that complainant failed to establish prima facie claims
of discrimination because she has not shown that similarly situated
individuals, outside of her protected groups, were treated differently
under similar circumstances, and because she has not otherwise raised
even an inference that discrimination was at the root of management's
actions. It is true that complainant identifies comparators, or
"similar employees," but she has not shown that all relevant aspects
of the employees' work situation were identical or nearly identical to
complainant's work situation. See Tettleton v. Gov't Printing Office,
EEOC Appeal No. 03A00080 (July 26, 2001). Complainant would have had
to show that these similarly situated comparators held the same job
as Part Time Flexible Mail Handlers as she; worked on the tour of duty
as she; had the same supervisor; and had the same or substantially the
same job duties. See id. Even assuming she met this initial burden of
establishing a prima facie case and that she was indeed an individual
with a disability, we still find that she has not shown that management
took the alleged actions because complainant's protected classes.
Similarly, we are not persuaded by the record or by complainant's
arguments that she was wrongly denied a reasonable accommodation.
In fact, we find quite the contrary, the record evidence shows that the
agency accommodated complainant. She was never returned to full duty;
she continued to work light duty as an accommodation, but on Tour
1, her original tour of duty. We remind complainant that while the
Rehabilitation Act entitles qualified individuals with disabilities
to reasonable accommodation, it does not necessarily entitle them to
the accommodation of their choice. See Castaneda v. United States
Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, Question 9 (rev. Oct. 17, 2002).
Therefore, we affirm the agency's final order, because the preponderance
of the evidence does not establish that discrimination occurred.
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 21, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The Equal Employment Opportunity Commission recognizes only five
racial categories: American Indian or Alaska Native; Asian; Black or
African-American; Native Hawaiian or Other Pacific Islander; and White.
The Commission considers "Hispanic" to be a national origin. See EEOC,
Questions and Answers about Race and Color Discrimination in Employment
(rev. Apr. 19, 2006).
3 Complainant also alleged that beginning in March 2005, the union
had failed to represent her in filing a grievance against a fellow
co-worker, and that management failed to provide her with a copy of
its internal investigation regarding her prior sexual harassment claim.
The agency however dismissed both these claims on procedural grounds.
Complainant has not argued against the dismissals in her appeal.
We interpret her silence as an acceptance and abandonment of the claims;
therefore, we decline to address them. Our analysis focuses only the
whether complainant was discriminated against when she was told that
she would have to return to her original tour of duty and work in full
duty status.
4 We note that complainant has not properly raised this claim before
the agency. We decline to address it as it is inappropriate for
complainant to raise a new claim for the first time on appeal or in a
request for reconsideration. See Hubbard v. Dep't of Homeland Sec.,
EEOC Appeal No. 01A40449 (Apr. 22, 2004).
??
??
??
??
2
0120063348
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120063348
6
0120063348