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.