01986352
07-06-2001
Benita A. Elder v. United States Postal Service
01986352
July 6, 2001
.
Benita A. Elder,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Mid-Atlantic Area),
Agency.
Appeal No. 01986352
Agency No. 1D-2761013-96
Hearing No. 140-97-8078X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges she was discriminated
against on the bases of race (Black) and disability (back pain) when:
(1) her request for leave for a doctor's appointment was denied; and
(2) her request for leave to attend her grandmother's funeral was denied.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a full-time Regular FSM-Clerk
at the agency's Raleigh, North Carolina facility, filed a formal EEO
complaint with the agency on June 24, 1996, alleging that the agency
had discriminated against her as referenced above. 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.
The following facts were established in the record. Complainant requested
leave in order to keep a November 9, 1995 (Veteran's Day) appointment
at the Veterans Administration. The appointment was scheduled for
3:00 p.m., however complainant was not scheduled to work until 10:30
p.m. that same day. Complainant requested leave because she did not
expect to be able to rest before starting work at 10:30 p.m. that night.
Complainant believed that she was subjected to less favorable treatment
than a comparative employee (C1) (White, disability unknown) in that C1
was permitted to use leave during the time in question. In response,
complainant's supervisor (S1) (Black, no disability) testified that he
denied complainant's leave request because it fell on a holiday and he was
already short staffed. S1 noted that complainant's doctor's appointment
was not scheduled during complainant's shift so it was possible for
complainant to go to her appointment and still work her entire shift.
Lastly, S1 explained that C1 was the senior FSM-Clerk and was due priority
on leave requests in accordance with a union agreement.
With respect to complainant's leave request to attend her grandmother's
funeral on November 23-24, 1995, an acting supervisor (AS1)<1> (race
and disability unknown) and the Distribution Operations Supervisor (S2)
(race and disability unknown) made the decision to deny complainant's
request for November 23, 1995, but did grant complainant's leave request
for November 24, 1995. S2 explained that complainant was denied leave on
November 23, 1995 because she would not have had enough staff to process
the mail that day if complainant was not there. The complainant alleged
that she was subjected to less favorable treatment than a comparison
employee (C2) (White) (disability unknown), who complainant believes
was permitted to take three days of leave when his grandmother died.
S2 testified that she did not approve C2's leave and he worked on a
different tour. Lastly, the record indicates that C2's leave request
did not fall on the same days as complainant's leave request.
The AJ concluded that complainant failed to establish a prima facie
case of disability or race discrimination. Specifically, the AJ found
that complainant failed to demonstrate that C1 and C2 were similarly
situated to complainant. The AJ noted that C1 was a senior Clerk
and permitted priority scheduling of leave over complainant due to
her seniority. The record also indicates that C2's leave request was
approved by different supervisors and he worked on a different tour.
With respect to disability, the AJ determined that complainant failed
to prove that she was an individual with a disability. Specifically,
the AJ concluded that complainant failed to present evidence that she
was substantially limited in a major life activity. Accordingly,
the AJ concluded that complainant failed to prove, by a preponderance
of the evidence, that she was discriminated on the bases of race and/or
disability when she was denied leave.
The agency's final decision implemented the AJ's decision. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 that discriminatory intent did not exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Without decided
whether complainant is an individual with a disability, we find that
assuming, arguendo, that complainant was able to present a prima
facie case of discrimination, we find that the agency articulated
legitimate, non-discriminatory reasons for its employment actions and
complainant failed to present any facts which could establish pretext
or discriminatory animus.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including and arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 6, 2001
__________________
Date
1 S1 was not working during the time frame when complainant requested
leave for her grandmother's funeral. Accordingly, the evidence of record
shows that S1 had no involvement in that request.