0120092015
06-24-2010
Carrie A. Salvatore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Carrie A. Salvatore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120092015
Hearing No. 520-2008-00166X
Agency No. 4B-018-0053-07
DECISION
On April 2, 2009, Complainant filed an appeal from the Agency's February 27, 2009, final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
During the period at issue, Complainant worked as a Part-Time Flexible Letter Carrier at the Agency's Post Office in Lee, Massachusetts. On August 3, 2007, Complainant filed an EEO complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of sex (female), disability (seizure disorder and stress), and in reprisal for prior protected EEO activity when:
1. since April 30, 2007 she was denied reasonable accommodation and had to wait until June 22, 2007 for a medical clearance to return to work;
2. on June 6, 2007, her annual and sick leave requests were not processed;
3. on July 25, 2007 and continuing thereafter, she was subjected to hostile work environment harassment with respect to her job performance;
4. on July 26, 31 and August 9, 2007, her schedule was changed without prior notification; and
5. on or about August 22, 2007, the Postmaster showed her payroll earnings statement to other employees.
At the conclusion of the investigation, the Agency provided Complainant 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 September 23, 2008, and issued a decision on February 25, 2009.
In her decision, the AJ found that Complainant was not denied accommodation insofar as there was no "inside work" available while Complainant was restricted from walking and driving. The AJ found no evidence that Complainant's leave slips were not processed, only that they were not done so expeditiously. The AJ found that Complainant admitted she was having trouble performing some of her duties and that the Postmaster's poor treatment of her was more likely motivated by personal dislike rather than unlawful animus The AJ also found that Complainant's male co-worker testified that the Postmaster was as "unsympathetic" to him as she was to Complainant.
The AJ further found that Complainant's schedule was not in fact changed and that she was not disciplined for being unavailable on the days she was given short notice to report for work. As a Part-Time Flexible employee, Complainant's job was to fill in when full-time employees were unavailable. It was the nature of the job to have a different schedule every week, sometimes with short notice. Finally, the AJ found that the Postmaster credibly testified that she never showed Complainant's pay stub to anyone; that the individual alleged to have been shown the pay stub testified that such an event never occurred; and that Complainant's co-worker credibly testified that it was Complainant, and not another co-worker, who told him the monetary amount for which Complainant's prior complaint/grievance settled.
The AJ concluded that Complainant failed to prove her claims, and the Agency subsequently issued a final order adopting the AJ's findings.
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, at � VI.B. (November 9, 1999).
Complainant, through counsel, submits a lengthy brief asking the Commission to reverse the Agency's final order. However, Complainant fails to address the standard of review by which the Commission is bound after a hearing is held. Complainant's brief restates her version of the facts in great detail. However, the brief contains no persuasive reason to reject the AJ's credibility determinations or the AJ's observation that Complainant herself was not a particularly persuasive witness.
We agree with the AJ that the incidents of which Complainant complains were insufficiently severe or pervasive to create a hostile work environment and that the treatment about which Complainant complains, while perhaps not "sympathetic," was not motivated by unlawful animus towards Complainant's protected bases. Even assuming arguendo Complainant established that she was an individual with a disability, we note that her job was to fill in for full-time employees, and she did not prove that there was an accommodation available that would have enabled her to do so during the time she was restricted from walking and driving. It is ultimately Complainant's burden of proof. We find that AJ's findings of fact to be supported by substantial evidence in the record, and we discern no basis to disturb her conclusions of law.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 24, 2010
__________________
Date
2
0120092015
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013