01995338
04-19-2000
Evelyn Boyd, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region) Agency.
Evelyn Boyd, )
Complainant, )
) Appeal No. 01995338
v. ) Agency No. 1J-607-0045-97;
) 1J-607-0038-97
) Hearing No. 210-99-6107X;
William J. Henderson, ) 210-99-6154X
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid West Region) )
Agency. )
____________________________________)
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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at and hereinafter referred to as 29
C.F.R. � 1614.405). Complainant alleges she was discriminated against
on the bases of age (DOB: 11/28/30) and physical disability (arthritis)
when on: (1) February 5, 1997, she was forced to work at the Irving
Park Road Processing and Distribution Center (IRP); (2) April 22, 1997,
she was instructed to work at the IRP; and (3) June 28, 1997, she was
issued a Notice of Removal. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that complainant, a Distribution Clerk at the agency's
Chicago Central Facility (CCF), filed a formal EEO complaint 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 AJ concluded that complainant failed to establish a prima facie case
of age discrimination because she failed to proffer any evidence from
which a discriminatory motive concerning her age could be inferred.
The AJ also concluded that complainant failed to prove a prima facie
case of physical disability discrimination. In reaching this conclusion,
the AJ found that complainant, who testified that prior to December 1998
she could not stand for prolonged periods of time but was able to walk
without assistance, was not substantially impaired in any one of her major
life activities at the time of the alleged discrimination and that the
agency did not perceive her as being disabled. Having determined that
complainant was not an individual with a disability within the meaning
of the Rehabilitation Act, the AJ concluded that the agency was under
no obligation to offer her any accommodation.
The agency's final decision adopted the AJ's decision. On appeal,
complainant takes issue with statements made at the hearing and names
employees who she believes were treated more favorably than she was.
In response, the agency restates the position it took in its FAD, and
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. We
agree with the AJ's determination that there is no evidence to support a
finding that complainant's age was a factor, much less a determinative
factor, in any of the agency's actions. See Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979).
We do not reach the issue of whether the AJ correctly held that
complainant is not an individual with a disability within the meaning of
the Rehabilitation Act.<2> Based on our review of the record, we find
that even assuming arguendo complainant is a qualified individual with a
disability, there is no evidence to support a finding that she was treated
less favorably than other similarly situated, non-disabled employees in
AWOL status. It is clear from the record that complainant's AWOL status
resulted from her refusal to accept the assignment at the IRP for which
she had successfully bid. Complainant requested that she be released
from her bid and be allowed to remain at the CCF because she was more
familiar with the facility and because it would be more difficult to
travel to the IRP. However, complainant testified at the hearing that
the Chicago Transit Authority's disability services pick her up at her
front door and transport her to and from work. While the ride to the
IRP is approximately sixteen miles longer than the ride to the CCF,
complainant failed to present evidence as to how a shorter travel time
would enable her to perform the essential functions of her position.
The Commission concludes that the record does not support a finding that
complainant needed a reasonable accommodation to perform the essential
functions of her position or that management ever received anything that
could be interpreted as a request for such an accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act (March 1, 1999).
We discern no basis to disturb the AJ's finding of no discrimination.
Therefore, 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 decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 19, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.