Dale Simmons, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 12, 2009
0120064573 (E.E.O.C. Mar. 12, 2009)

0120064573

03-12-2009

Dale Simmons, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Dale Simmons,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120064573 (formerly 01A64573)

Hearing No. 140-2005-00259X

Agency No. 4C-280-0004-05

DECISION

On August 1, 2006, complainant filed an appeal from the agency's July 12,

2006 notice of final action 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.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a Carrier Technician at the agency's Independence Station, in Charlotte,

North Carolina. Complainant also worked at the agency's South Providence

Station during the relevant timeframe.

Complainant filed an EEO complaint on November 9, 2004, which was

subsequently amended. Following complainant's request for a hearing

on her complaint, an EEOC Administrative Judge (AJ) held a hearing to

determine whether complainant was discriminated against on the bases of

race (African-American), sex (female), disability (back and shoulder),

and in reprisal for prior protected EEO activity when:

1. On September 28, 2004, and ongoing complainant was denied a reasonable

accommodation;

2. On October 20, 2004, complainant was denied a time change and a "one

click lunch" (which means a person is not taking an otherwise mandatory

30 minute lunch, but is instead only clocking out for 1 minute of lunch)

as a reasonable accommodation;

3. On November 20, 2004, management relocated complainant from her detail

assignment at South Providence Station to her assigned duty station at

Independence Station;

4. On December 7, 2004, complainant was sent home after asking again

for a reasonable accommodation in the form of an ergonomic chair;

5. In pay period 17, complainant was charged with annual leave when she

had no leave;

6. In pay period 19, complainant was denied overtime that she worked on

September 2, 2004;

7. In pay period 21, complainant was charged with 56 hours of annual

leave when complainant only used 48 hours of annual leave and eight

hours of sick leave; and

8. In pay period 23, complainant was changed with sick leave instead of

annual leave.1

The AJ held a hearing on May 16, - May 17, 2006, and issued a bench

decision on May 17, 2006. The agency subsequently issued a notice of

final action fully implementing the AJ's finding that complainant failed

to prove that she was subjected to discrimination as alleged.

The AJ noted that the agency was aware that complainant needed lumbar

support and was prescribed an ergonomic chair with lumbar support as an

accommodation to work. The AJ found complainant selected an ergonomic

chair from the agency office and was permitted to work using the chair

from September 2004, through December 2004. The AJ noted that the

chair was misplaced on September 28, 2004, when it was transported

by the agency to complainant's detail at South Providence Station.

Complainant testified that she used a lumbar support pillow and another

chair until the misplaced chair was found on October 13, 2004.2

The AJ noted that when complainant returned to Independence Station in

December 2004, the ergonomic chair was lost a second time and found

a few days later. The AJ noted that when complainant requested an

ergonomic chair on December 7, 2004, she was sent home until the chair

was found and ultimately returned to work on December 9, 2004. The AJ

found that on both instances when the ergonomic chair was temporarily

lost, complainant was offered the opportunity to transport the ergonomic

chair in her own vehicle; however, she refused to do so despite being

authorized to transport the chair by her supervisors. The AJ found no

evidence complainant's ergonomic chair was deliberately taken from her

on either occasion.

The AJ noted complainant also requested as reasonable accommodations

changing her duty hours back to her customary carrier hours; a one click

lunch hour; and changing her work location from the South Providence

Station back to the Independence Station. The AJ found there is

no medical documentation to support complainant's request for these

accommodations. However, the AJ noted that complainant was returned to

the Independence Station based on her complaints about the pain she was

experiencing while working at the South Providence Station.

With regard to her claim of disparate treatment, the AJ found the agency

met its burden of articulating legitimate, non-discriminatory for its

actions: complainant was provided the reasonable accommodation of an

ergonomic chair; complainant was denied a change of schedule because it

would have shortened her work day to less than eight hours; complainant

was denied a one click lunch because it violates agency policy and

circumvents the ELM and labor law which requires an employee receive a

lunch break after working six hours; and complainant was provided pay

adjustments for pay periods 17, 19, 21, and 23 according to regular

postal business.

The AJ found complainant failed to prove that the agency's articulated

reasons for its actions was a pretext for discrimination. Specifically,

the AJ noted that complainant's ergonomic chair was not available on

the days in question as a result of complainant's refusal to carry it

in her personal vehicle and because it was temporarily misplaced after

transport by the agency. The AJ found no evidence that the ergonomic

chair was misplaced because of complainant's race, sex, disability,

or in reprisal for prior protected activity. With regard to the second

instance of the misplaced chair, the AJ noted that complainant was sent

home on December 7, 2004, until the chair was found two days later,

and she was returned to work on December 9, 2004.

The AJ found that the agency's denial of the schedule change and the

one click lunch was done in compliance with the ELM and the FLSA.

The AJ found application of these laws was not done for the purpose of

discrimination.

The AJ found that there is no indication that the pay and leave

issues raised in the present complaint were created for the purpose of

discrimination. The AJ noted that all pay and leave issues identified

in issues 5-8, were resolved. The AJ found evidence shows that it is

not unusual for pay errors to occur within an agency when an employee

works in multiple locations.

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, � VI.B. (November 9, 1999).

Upon review of the record we find the AJ's decision finding

no discrimination is supported by substantial evidence.3 After a

review of the record in its entirety, including consideration of all

statements submitted on appeal, the agency's notice of final action is

hereby AFFIRMED because a preponderance of the record evidence does not

establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

March 12, 2009

__________________

Date

1 At the hearing complainant did not contest the issues identified by

the AJ. Moreover, on appeal, complainant does not contest the issues

decided by the AJ.

2 Although the AJ stated the misplaced chair was found on October 15,

2004, complainant testified at the hearing that the chair was located

on October 13, 2004.

3 We do not address in this decision whether complainant is a qualified

individual with a disability.

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0120064573

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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