0120072932
09-26-2007
Patricia A. Owen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia A. Owen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072932
Agency No. 4G752023106
Hearing No. 450200700047X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 17, 2007, final order 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.
On July 6, 2006, complainant filed a formal complainant claiming
discrimination based on race (white) and sex when, in October 2005,
she was issued a notice of removal from her position.1 Following
the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ conducted a hearing on March 23,
2007, and issued a decision on May 2, 2007, finding that the agency did
not discriminate against her. The agency adopted the AJ's decision.
At the time of the events herein, complainant worked as a PTF (part-time
flexible) window clerk at the agency's Cedar Hill, TX, facility. A few
months prior to the events at issue, in April 2005, complainant signed
a 'last-chance' settlement of a removal notice for improper conduct.2
On June 29, 2005, complainant's supervisor (S1) and the Postmaster
(PM) observed complainant having difficulty performing her duties at
the window, walking, and talking coherently; the PM ordered her to an
emergency fitness-for-duty (FFD) examination, but, upon the advice of the
union, she refused. S1 drove her home, but complainant could not open her
front door. Complainant's doctor removed her from work until September.
Upon her return, she was taken off-the-clock, and issued a notice of
removal.
The AJ found that the agency, through S1 and the PM, articulated
legitimate, nondiscriminatory reasons for its actions, i.e., they
reasonably concluded that complainant was unable to function, that she
did not comply with the PM's direct order to take an FFD exam, and the
agency removed her. In response, the AJ found that complainant did
not demonstrate pretext. As to a comparative employee identified by
complainant, the AJ found that he was not similarly situated to her,
in that, he was a full-time, career employee, and managers did not
believed that he was under the influence of alcohol with regard to a
single outburst.3
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. After a review of the record in its entirety and consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order,
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.
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
____9/26/07______________
Date
1 Because she filed a grievance, her removal was effective April 10,
2006.
2 On March 14, 2005, complainant exhibited erratic behavior, and she
was taken to a medical facility; her blood level indicated she was under
the influence of alcohol.
3 With her appeal, complainant submitted papers from the grievance
process but offered no explanation about their significance.
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0120072932
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036