0120071178
09-21-2007
Teresa Florentino, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Teresa Florentino,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071178
Agency No. 1B012001106
Hearing No. 520200600373X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 14, 2006 final order concerning
her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant filed a formal complainant on April 24, 2006, claiming
discrimination based on disability (chronic cervical sprain/strain
(permanent)) when (a) she was not given overtime opportunities between
December 28, 2005, and March 7, 2006, based on disability; and (b)
she was sent home due to lack of work on February 10 and 15, 2006,
based on reprisal. Following an investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The agency filed
a Motion seeking a decision without a hearing, and complainant did not
file a response.1 On November 21, 2006, the AJ issued his decision,
finding that the agency did not discriminate against complainant, and
the agency adopted it.
At the time of these events, complainant worked as a Mail Handler on
Tour 3 in Springfield, MA. She was assigned to permanent light duty and
could not lift more than 20 pounds. She asserted that she was on the
overtime desire list (OTD) but was often bypassed. The agency stated
that complainant was on the OTD and afforded overtime work within her
restrictions as allowed by her seniority; however, overtime work was often
assigned by job function or job area, and when any of the job or work
required moving 70-pound sacks, pulling containers, or unloading trucks,
she could not be assigned. With regard to (b), the agency explained
that a light duty assignment was not a guarantee of a full day's work,
since work within her restrictions was not always available, and she
was sent home when no work existed. The managers denied knowledge of
her prior EEO activity.
The AJ found that complainant's evidence was incomplete to show that she
was a qualified individual with a disability under the Rehabilitation Act,
in that, she did not show that she was substantially limited in a major
life activity, characterizing her restrictions as a "moderate" limitation.
Assuming for the purposes of this decision only that complainant was able
to establish that she was an individual with a disability as defined
by the Rehabilitation Act, we find, like the AJ, that complainant did
not show that work was available within her restrictions during the
periods at issue that are set forth in claims (a) and (b). The agency
articulated legitimate, nondiscriminatory reasons for its actions and
that complainant failed to demonstrate pretext.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, including arguments not
specifically addressed, it is the decision of the Equal Employment
Opportunity Commission to affirm the agency's final order, because
the Administrative Judge's issuance of a decision without a hearing
was appropriate,2 and a preponderance of the record evidence does not
establish that discrimination occurred.
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
_____9/21/07_____________
Date
1 In her appeal, complainant's representative maintained that he was
not notified that a response to the agency's motion was necessary.
At the outset, we note that the representative informed the AJ, upon
receipt of the agency's motion, that should the AJ consider granting
the request for summary judgment, "he would request the opportunity"
to respond. Although the representative was apparently waiting for some
further notification, we find that complainant's representative was on
notice that the AJ was considering the agency's motion and that he had
adequate opportunity to respond.
2 In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July
11, 2003). Here, we find that the AJ appropriately issued a decision
without a hearing, as complainant failed to proffer sufficient evidence
to establish that a genuine issue of material fact exists such that a
hearing on the merits is warranted.
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0120071178
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071178