01A13927
03-08-2002
Patricia Gayles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Patricia Gayles v. United States Postal Service
01A13927
March 8, 2002
.
Patricia Gayles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A13927
Agency Nos. 4J-606-0082-98; 4J-606-0269-98
Hearing Nos. 210-A0-6329X; 210-A0-6330X
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.<1> 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 complainant, a Letter Carrier at the agency's Fort
Dearborn Station in Chicago, Illinois, filed two formal EEO complaints on
September 20, 1999. In agency complaint no. 4J-606-0082-98, complainant
alleged she was discriminated against on the bases of sex (female) and
in reprisal for prior protected activity arising under Title VII when,
in December 1997, a floating employee was not disciplined for conduct.
In agency complaint no. 4J-606-0269-98, complainant alleged she was
discriminated against on the bases of disability (bilateral plantar
fascitis) and in reprisal for prior protected activity arising under
Title VII when, in July 1998, the agency sent her home because her shoes
were not safe. The agency consolidated the two cases for processing
but did not investigate agency complaint no. 4J-606-0082-98, based on
its determination that complainant failed to state a claim.
At the conclusion of the investigation of agency complaint
no. 4J-606-0269-98, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge.
Following a hearing on agency complaint no. 4J-606-0269-98, the
Administrative Judge issued a decision finding no discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
A. Agency Complaint no. 4J-606-0082-98
The Administrative Judge notified the parties during the pre-hearing stage
that they could object to the issues and bases as alleged above and that
after the parties were given an opportunity to respond to the agency's
dismissal of complaint no. 4J-606-0082-98, the Administrative Judge
would review the appropriateness of the dismissal. The Administrative
Judge determined that complainant presented no evidence to establish
that she was aggrieved as a result of the agency not disciplining the
floating employee. The Administrative Judge concluded that absent
this evidence, complainant's allegation represented a difference in
opinion between complainant and management as to supervision. On appeal,
complainant contends, without articulating the alleged evidence of harm,
that she was not allowed to present it at the hearing. However, we note
that complainant was represented during the pre-hearing phase and at
the hearing by counsel, and the record does not support her contention
that she was deprived of an appropriate opportunity to argue against
the agency's dismissal. Accordingly, we affirm the dismissal of agency
complaint no. 4J-606-0082-98 for failure to state a claim upon which
relief can be granted. 29 C.F.R. � 1614.107(a)(1).
B. Agency Complaint No. 4J-606--0269-98
The Administrative Judge concluded that complainant failed to establish
a prima facie case of retaliation because she failed to prove that
the management official who sent her home for wearing unsafe shoes was
aware of her prior protected activity. The Administrative Judge further
concluded that complainant failed to establish that she was an individual
with a disability within the meaning of the Rehabilitation Act.
After a careful review of the record, the Commission finds that the
Administrative Judge's findings of fact are supported by substantial
evidence and that his decision referenced the appropriate regulations,
policies, and laws. Assuming arguendo that complainant is an individual
with a disability, we find that the agency did not discriminate
against complainant when it sent her home for wearing unsafe shoes.
In reaching this conclusion, we find no evidence to support a finding
that the agency was prohibiting complainant from wearing shoes with
sufficient arch support to accommodate her bilateral plantar fascitis.
Rather, complainant was sent home for wearing unsafe shoes. The record
establishes that it was well known among the complainant and her
co-workers that the kind of �gym� shoes complainant was wearing to work
were considered unsafe for the workroom floor. Complainant has presented
no evidence that in order to have adequate arch support, she needed to
wear shoes that management considered unsafe.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and 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
March 8, 2002
__________________
Date
1 The 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.