Viola A. Abrams, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01a44749 (E.E.O.C. Nov. 29, 2004)

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.