01a52920
04-26-2006
Elizabeth M. Gregory, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elizabeth M. Gregory v. United States Postal Service
01A52920
April 26, 2006
.
Elizabeth M. Gregory,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52920
Agency No. 4J-481-0148-03
DECISION
Complainant appeals to the Commission from the agency's decision dated
February 16, 2005, finding no discrimination. In her complaint, dated
June 2, 2004, complainant, a City Letter Carrier, alleged discrimination
based on disability (bipolar) when on September 2, 2003, she was harassed
and subjected to a hostile work environment. The agency, in its decision,
concluded that it asserted legitimate, nondiscriminatory reasons for
its action, which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged incident. Initially, the record indicates that on July
3, 2003, complainant signed a Last Chance Agreement, requiring her to
attend EAP sessions on a weekly basis, as well as maintain satisfactory
attendance, as a condition of her employment. Complainant claimed that
on the date of the alleged incident, she was scheduled to attend an EAP
session at 5:00 pm. When she asked her supervisor for assistance on
her route so she could attend the session, she was told that no help
was available and asked her to change her appointment due to a heavy
mail volume. Complainant acknowledged that when she reported to work
on that day, the mail volume was rather heavy. Complainant further
indicated that her supervisor, after talking to her EAP counselor,
told her that she could go to her scheduled EAP session and that she had
found an identified employee who could carry her route during that time.
Then, shortly after that, the identified employee approached complainant
and asked what work was being assigned from her route and said to her,
�Why do I have to carry off your route so you can go to EAP? This is
a bunch of crap.� Complainant claimed that this made her so upset that
she clocked out until her EAP appointment at 5:00 pm.
Complainant's supervisor stated that at the time of the alleged incident,
complainant informed her that she had an EAP appointment scheduled for
5:00 pm. The supervisor indicated that she asked complainant if she
minded moving her appointment due to being short-staffed and she did
not mind. However, upon speaking with complainant's EAP counselor,
who felt complainant should keep her appointment as scheduled, she
located the identified employee, who could carry complainant's route.
The supervisor stated that she was not aware of the altercation between
complainant and that employee and that complainant left work on the date
of the incident at issue without notifying her.
In addition, the record indicates that complainant also raised some
related matters after the alleged incident. She asserted that when
she got back to work on September 4, 2003, her supervisor delayed in
providing a Form CA-16 related to the September 2, 2003 injury at
issue and she was not allowed to return to work until the Medical
Unit approved of her return. In this regard, the Acting Station
Manager responded that complainant abandoned her post on September 2,
2003, without notifying her supervisor or him and did not return until
September 4, 2003. When she returned to work, she provided a doctor's
note, which was not sufficient documentation. Based on the situation
at that time, including the Last Chance Agreement, the Manager decided
that in accordance with the agency policy, complainant was allowed to
return to work only following her clearance from the Medical Unit.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the Commission finds that complainant
failed to show that the agency's reasons were pretext for discrimination.
The Commission also finds that complainant failed to show, by a
preponderance of the evidence, that she was discriminated against.<1>
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
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
April 26, 2006
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Commission does not address in this decision whether complainant
is a qualified individual with a disability. Furthermore, we note
that complainant has not claimed that she was denied a reasonable
accommodation.