01a44749
11-29-2004
Viola A. Abrams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Viola A. Abrams v. United States Postal Service
01A44749
November 29, 2004
.
Viola A. Abrams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44749
Agency No. 1-G-772-0035-02
Hearing No. 330-2003-08132X
DECISION
Complainant timely initiated an appeal from an agency final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination, brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. ,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. , and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal. 29 C.F.R. � 1614.405.
The record reveals that complainant, a Mail Processing Clerk at the
agency's Houston, Texas Processing and Distribution Center, filed
a formal EEO complaint on September 11, 2002. Therein, complainant
claimed discrimination on the bases of race (African-American), color
(black), disability (back injury), and age (D.O.B. 1/27/57) when:
On June 7, 2002, complainant learned that, from approximately February
2002, to May 2002, the agency provided a co-worker with light duty and
a straight-back chair pending approval of a �CA-2,�<1> but refused to
provide complainant with light duty and a straight-back chair during
the same time period while her CA-2 was pending.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
Regarding complainant's disability claim, the AJ determined that
complainant failed to establish a prima facie case of disability
discrimination. In particular, the AJ found that although complainant
showed that she was an individual with a disability, she failed to
demonstrate that she was a qualified individual with a disability.
The AJ noted that complainant did not establish that she could perform
the essential functions of her position with or without a reasonable
accommodation. The AJ also concluded that complainant also failed to
show that she could have been accommodated at the time at issue by a
transfer to an available suitable position.
The AJ further concluded that complainant established a prima facie
case of race, color, and age discrimination because she showed that
the agency denied her light duty and a straight-back chair, while a
co-worker outside of her protected classes was treated more favorably
because she was given light duty and a straight-back chair during the
same pertinent time period. The AJ further concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions; namely,
that the co-worker, unlike complainant, also had a �CA-1"<2> pending
(along with her CA-2), which required the agency to immediately provide
her with a limited duty assignment (which in this case also included use
of a straight-back chair) until a decision was rendered on the CA-2. The
AJ determined that the filing of a CA-2, unlike a CA-1, did not obligate
the agency to provide a requested accommodation unless, and until,
the request was approved by the Department of Labor. Additionally,
the AJ found that complainant did not establish that, more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found that the
only evidence of pretext offered by complainant was that the co-worker
received preferential treatment because her brother was a management
official, which effectively belied her claim of discriminatory animus.
The agency's final order implemented the AJ's decision. The instant
appeal followed.
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.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
In particular, we find that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
towards her because of her race, color, age, or disability.
Moreover, the Commission notes that on appeal, complainant again argues
that she was �discriminated against� by agency managers, because the
identified co-worker's brother was also a manager. However, we note
further that discrimination/favoritism on the basis of familial status
does not fall within the purview of the anti-discrimination statutes
enforced by the Commission. See 29 C.F.R. �� 1614.103, .106(a).
Accordingly, 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 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
November 29, 2004
__________________
Date
1A CA-2 refers to a request form filed with the Department of Labor by
a postal employee who is requesting a limited duty assignment because
of an on-the-job injury or an occupational illness.
2A �CA-1" refers to a request made by a postal employee to the agency
for a light duty assignment because of an off-the-job injury.