Georgia Ann LaFavor, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.

Equal Employment Opportunity CommissionAug 8, 2000
01a00206 (E.E.O.C. Aug. 8, 2000)

01a00206

08-08-2000

Georgia Ann LaFavor, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.


Georgia Ann LaFavor v. United States Postal Service

01A00206

August 8, 2000

Georgia Ann LaFavor, )

Complainant, )

) Appeal No. 01A00206

v. ) Agency No. 1H-311-1020-95

) Hearing No. 110-98-9410X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W. Areas), )

Agency. )

)

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the bases of race (African-American), sex

(female), reprisal (prior EEO activity), physical disability (asthma),

and mental disability (major depression) in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>

Complainant alleges she was discriminated against when: (1) she was issued

a Notice of Removal; and (2) she was not paid all her administrative

leave. The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. � 1614.405). For the following

reasons, the Commission AFFIRMS the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Flat Sorter Machine Operator at the agency's Augusta,

Georgia Processing and Distribution facility. Believing she was a victim

of discrimination, complainant sought EEO counseling and subsequently

filed a formal complaint on April 5, 1995.

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 recommended decision

finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of race or sex discrimination because she failed to demonstrate that

similarly situated employees not in her protected classes were treated

differently under similar circumstances. Specifically, the AJ found

complainant failed to establish that others outside of her protected

classes, who had similar attendance problems, were not issued a Notice

of Removal. Complainant otherwise failed to raise any inference of

discrimination on the bases of race or sex.

The AJ also found complainant failed to establish a prima facie case

of physical or mental disability. Complainant herself testified that

neither her asthma nor her major depression substantially limited a

major life activity.

The AJ did find, however, that complainant established a prima facie case

of reprisal discrimination. Specifically, complainant engaged in prior

EEO activity within close enough proximity to her Notice of Removal such

that a causal connection could be inferred.

The AJ then concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions, namely, that complainant

was issued the Notice of Removal because she had attendance problems,

incurred a significant amount of work-related accidents, and failed to

follow instructions. Complainant's supervisor testified that complainant

reported to work on October 12, 1994, and was then on AWOL for the

next twelve days. During this time, complainant did not call in to

report her absences, or called in to report she would be in later, but

failed to arrive. Complainant's supervisor testified that complainant's

failure to report an absence was a major disruption on the agency, since

he did not have the opportunity to replace complainant for her shift.

The agency also maintained that complainant was �accident prone.�

Specifically, the supervisor explained that complainant was involved in

seven work-related accidents. The AJ noted that complainant admitted

that some of the accidents were caused by her lifting or pulling items

that she knew were too heavy.

With respect to her allegation that she was denied all the administrative

leave to which she was entitled, the AJ found that complainant was in fact

paid the appropriate amount of leave. The AJ did not find complainant's

testimony in this regard was credible in light of the fact that the

time periods for which she was allegedly not paid administrative leave

continued to change.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

discrimination or retaliation. In reaching this conclusion, the AJ

found that complainant failed to present any persuasive evidence that

she was treated differently because of her protected bases.

On September 7, 1999, the agency issued a final decision adopting the

AJ's final decision. Complainant makes no new contentions on appeal,

and the agency requests that we affirm its final FAD.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

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

recommended decision summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity or were motivated by

a discriminatory animus towards complainant's race, sex, physical or

mental disability. We discern no basis to disturb the AJ's recommended

decision. Therefore, after a careful review of the record, including

arguments and evidence not specifically addressed in this decision,

we affirm the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

August 8, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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

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.