01991552
01-19-2001
Sarah Cooper Complainant, v. William J. Henderson, Postmaster General United States Postal Service (Pacific/Western Area) Agency.
Sarah Cooper v. U.S. Postal Service
01991552
January 19, 2001
.
Sarah Cooper
Complainant,
v.
William J. Henderson,
Postmaster General
United States Postal Service
(Pacific/Western Area)
Agency.
Appeal No.01991552
Agency No.4F-950-1147-94
Hearing No. 370-95-2273X
DECISION
Complainant filed a timely appeal of a final agency decision finding no
discrimination. Her complaint alleged unlawful employment discrimination
on the bases of race (Black), color (black), age (12/5/39), and disability
(shoulder injury), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
Complainant alleges she was discriminated against when she was denied
a light duty/limited duty assignment. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the final agency decision.
The record reveals that during the relevant time, complainant was
employed as a custodian PS-2, at the agency's Blossom Hill Station,
San Jose District. Complainant alleged that she was denied reasonable
accommodation in the form of light duty which would have allowed her to
bid for a PS-3 position. She also alleges a white employee also employed
as a custodian was given preferential treatment in being given light
duty.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on July 1, 1994. At the
conclusion of the investigation, the complainant requested a hearing
before an administrative judge (AJ). The AJ held a hearing on April
19, 1995 and issued a recommended decision finding no discrimination on
any of the complainant's bases. The AJ concluded that the complainant
failed to prove that she was treated less favorably than a White employee
(H) because H was not on light duty and performed her duties as a PS-3
custodian without substantial assistance. The AJ found that H was
medically restricted from doing any heavy lifting but was not prevented
from using power driven equipment as required by her position.
Regarding the complainant's claim that she was denied a reasonable
accommodation, the AJ concluded that the complainant was disabled within
the meaning of the law because she was substantially limited in her
ability to reach, lift, push or pull due to her shoulder condition.
The AJ concluded that the agency proved it would have created an undue
hardship to provide the complainant constant assistance in performing
the heavier duties of a PS-3 custodian. The agency adopted the AJ's
findings of no discrimination.
On appeal, complainant makes no new arguments, and the agency requests
that we affirm its final decision.
Analysis and Findings
As a preliminary matter, we note that the complainant filed an appeal on
July 28, 1995 and subsequently filed a civil action in the U.S. District
Court for the Northern District of California on October 10, 1995.
The Commission dismissed the appeal at that time pursuant to 29
C.F.R. �1614.409 (formerly 29 C.F.R. �1614.410) which requires that we
discontinue the administrative process once a civil action has been filed.
The complainant filed the instant appeal seeking to reinstate her claims
after the U.S. District Court dismissed her complaint without prejudice.
Based on the court's dismissal without prejudice, we conclude that
the complainant's EEO claims have yet to be reviewed, in final form,
by an entity outside the agency and, for that reason, we reopen the
administrative forum to her appeal. Quintero v. U.S. Postal Service,
EEOC Request No. 05920926 ( January 7, 1993); See also Roland v. Tennessee
Valley Authority, EEOC Request No. 05900461 (September 7, 1990).
Our review of post-hearing factual findings in an Administrative Judge's
decision shall be based on a substantial evidence standard of review.
29 C.F.R. � 1614.405(a). 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). Legal determinations
will be reviewed de novo on appeal. EEOC Management Directive 110,
Chapter 9-17(November 9, 1999).
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), the Commission finds substantial evidence to support
the AJ's conclusions that the agency did not discriminate against the
complainant on the basis of her race, age and disability. Specifically,
the AJ concluded that there was no evidence that the agency treated
the complainant less favorably than H in not being given a light duty
designation as a PS 3 custodian because the complainant had never worked
as a PS-3 custodian. The complainant declined to even bid for the PS-3
position because she claimed she would not be able to perform the job
without accommodation. Having taken this stance, she cannot persuasively
argue that she was denied the same treatment as H who already occupied
the position of PS-3 custodian.
In addition, the record substantially supports the AJ's conclusion that
there was no evidence of age discrimination because H was two years older
than the complainant and there were no other younger employees identified
in the record who had requested and received light duty designation.
The record supports the AJ's conclusion that the complainant is disabled
within the meaning of the law because she has an impairment which
substantially limits a major life activity. The AJ failed, however,
to evaluate whether the complainant was a �qualified� individual with
a disability in her findings. Rather, she assumed the complainant was
entitled to a reasonable accommodation but that the agency successfully
proved it would cause undue hardship to provide the complainant with
assistance.
We conclude that the complainant was not a �qualified� individual with
a disability because as she conceded, she was unable to perform the
essential functions of the position of PS-3 custodian. Because we
conclude the complainant was not a �qualified� disabled individual,
we need not reach the issue whether the agency was required to provide
a reasonable accommodation.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the final agency
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
_______________________
Frances M. Hart
Executive Officer
Executive Secretariat
January 19, 2001
Date
1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
The regulations, as amended, may be found at the Commission's website
at www.eeoc.gov.