0120071390
06-11-2009
Sharon A. Hild, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon A. Hild,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071390
Hearing No. 470-2006-00108X
Agency No. 4C-400-0036-06
DECISION
On January 17, 2007, complainant filed an appeal from the agency's January
8, 2007 notice of final action 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Express Mail Service Clerk at the agency's Louisville Post Office
in Louisville, Kentucky.
Complainant filed an EEO complaint dated March 27, 2006, alleging that
she was discriminated against on the bases of sex (female) and disability
(ulna release/Thoracic Outlet Compression (TOC) Syndrome, bilateral
carpal tunnel) when: on February 7, 2006, complainant was denied the
opportunity for her personal physician to review a limited duty offer of a
modified assignment, PS Form 2499x, prior to complainant making a decision
whether to accept the limited duty offer of a modified assignment, PS
Form 2499x and, thus, complainant was allegedly forced, under protest,
to accept the limited duty offer of a modified assignment, PS Form 2499x.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on December 12, 2006.
The AJ issued a decision on December 29, 2006.
In her decision, the AJ found the agency articulated legitimate,
non-discriminatory reasons for its actions. The AJ noted that
complainant's supervisor (S1) testified that he was not very experienced
in making a limited duty offer of a modified assignment to employees.
The AJ noted that S1 testified that he told complainant on February 7,
2006, that she had to accept and/or reject the limited duty job offer
without her physician's review based upon his understanding of the
printed instructions on the back of the 2499x form. He testified that
on February 7, 2006, he was not aware of complainant's right to have
a physician review the limited duty job offer prior to her decision to
accept or reject it. S1 also testified that it was his belief at the
time of the incident at issue that the job offer was within complainant's
medical restrictions. The AJ noted that on February 6, 2006, S1 had
issued a limited duty job offer to complainant which she rejected based
on her belief that a portion of the duties, performing manual flats,
were not within her medical restrictions.1 S1 stated that he then offered
complainant the new modified job offer on February 7, 2006, which removed
the duties complainant had objected to on February 6, 2006, and which
retained the job duties complainant had previously performed and which
she never complained were outside of her medical restrictions.
The AJ found complainant did not meet her burden in showing that the
agency's actions were motivated by discrimination based on her sex or
disability. With regard to the comparative evidence cited, the AJ found
that complainant failed to show that Comparative 1 or Comparative 2 had
similar medical restrictions or that they reported to the same supervisor
as complainant. Further, the AJ found that the conclusory evidence from
the union steward that she believed S1 had a "problem" supervising women
is not persuasive enough to carry complainant's ultimate burden of proof
regarding the sex discrimination charge.
The agency subsequently issued its notice of final action on January 8,
2007. The agency's final action fully implemented the AJ's decision.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
The AJ determined, and we agree, that the agency provided legitimate,
non-discriminatory reasons for its actions, which complainant failed to
show were a pretext for prohibited discrimination. Moreover, we note
complainant does not allege that she was denied a reasonable accommodation
to perform the essential functions of her position; nor does she allege
that she was forced to work beyond her restrictions.2
Accordingly, the agency's notice of final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 11, 2009
__________________
Date
1 Complainant did not perform the manual flat duties on February 6,
2006, which she claimed violated her medical restrictions.
2 We do not address whether complainant was a qualified individual with
a disability.
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0120071390
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071390