01A45007
11-29-2004
Patricia Harris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia Harris v. United States Postal Service
01A45007
11-29-04
.
Patricia Harris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45007
Agency No. 1J-484-0014-03
Hearing No. 230-2004-0023X
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant filed a complaint in which she
claimed that the agency discriminated against her on the bases of race
(African-American), color (brown-skinned), sex (female), disability
(tendonitis), and reprisal (prior EEO activity) when, on April 29,
2003, she was not selected for the position of Facility Environmental
Coordinator (EAS-15).<1>
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.<2>
ORDER (C0900)
Unless it has already done so, the agency shall remove from vacancy
announcements at its facilities any language requiring that applicants
for various positions have �no physical restrictions,� or words to
that effect, in accordance with its final order on EEO Complaint
No. 1J-484-0024-03, dated January 12, 2004. The agency is further
directed to submit a report of compliance, as provided in the statement
entitled "Implementation of the Commission's Decision." The report
shall include supporting documentation verifying that the corrective
action has been implemented.
POSTING ORDER (G0900)
Unless it has already done so, the agency is ordered to post at its
Detroit Bulk Mail Center in Allen Park, Michigan, copies of the attached
notice. Copies of the notice, after being signed by the agency's duly
authorized representative, shall be posted by the agency within thirty
(30) calendar days of the date this decision becomes final, and shall
remain posted for sixty (60) consecutive days, in conspicuous places,
including all places where notices to employees are customarily posted.
The agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed
notice is to be submitted to the Compliance Officer at the address cited
in the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
_____11-29-04_____________
Date
1For purposes of analysis, the Commission assumes that complainant is
an individual with a disability under the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791.
2However, the AJ found that the agency violated the Rehabilitation Act
by listing in the vacancy announcement a requirement of �no physical
restrictions.� As a remedy, the AJ ordered the agency to remove the �no
physical restrictions� requirement and to post the appropriate notice.
In its final order, the agency implemented the AJ's decision, including
the order for relief.