0120070125
02-26-2009
Gloria Cawley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gloria Cawley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070125
Agency No. 1F-914-0010-06
DECISION
On October 5, 2006, complainant filed an appeal from the agency's
September 7, 2006 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk at the agency's Van Nuys Processing and
Distribution Center in Van Nuys, California.
Complainant filed an EEO complaint alleging that she was subjected to
unlawful discrimination in violation of 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. In its letter accepting
complainant's complaint, the agency defined the complaint as alleging that
she was discriminated against on the bases of race (Mexican-American),
national origin (not specified), color (brown), and disability (not
specified) when:
1. On January 23, 2006, complainant was not allowed to stay on Tour 2,
which she requested because of medical reasons; and
2. In 2002, management gave complainant a stationary job offer as a
rehab employee and then closed the section.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
On appeal, complainant claims she has established she has been disabled
since 2000. She notes that she was given a Rehabilitation Reassignment
Job Offer by the agency in 2000, which specified that her condition
is permanent and stationary. Complainant states she sent numerous
requests to be accommodated on Tour 2 which were denied by the agency.
Complainant also alleges that she bid on several Tour 2 positions and
states the bids were denied by the agency.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Upon review, we find the agency properly found that complainant failed
to establish a prima facie case of discrimination based on her race,
national origin or color since she failed to identify any similarly
situated employees who were treated differently. With regard to claim
1, complainant claimed that Employee 1 was permitted to work on Tour 2;
however, the record reveals that Employee 1 is not similarly situated
to complainant since he was an EAS In-Plant Specialist, not on detail,
and under the supervision of a different supervisor than complainant.
The agency notes that complainant was given a temporary detail from
Tour 1 to Tour 2 while she was on jury duty from December 13, 2005, to
January 18, 2006. The agency notes the temporary detail was extended
several times until March 28, 2006. The agency provides an affidavit
from the Manager, Distribution Operations who states that although
complainant was informed of the procedures required to accomplish a
permanent change of schedule for medical reasons, she failed to submit
the proper medical documentation supporting the change. Upon review,
we find complainant failed to show that the agency's actions were
motivated by any of her protected bases. Moreover, we find complainant
failed to provide any medical documentation explaining why she needed to
work on Tour 2 as a reasonable accommodation for her claimed disability
of a shoulder condition (adhesive capsulitis, forward flexion impingement,
and possible rotator cuff tear).2
With regard to claim 2, the record reveals that in August 2000,
complainant was provided a modified duty assignment to perform
quality control work in SPBS and FSM within her medical restrictions.
The record reveals complainant accepted the modified offer. The Manager,
Distribution Operations noted complainant worked with ten other employees
in the Voice Activated Control room, but she was never given an official
assignment there. This unit was later closed and the employees were
reassigned to other areas. The agency stated that while complainant
volunteered and was approved to work in other areas at times, within
her restrictions, she never received a permanent assignment to those
other areas and at all times retained her original assignment in FSM.
Upon review, we find complainant failed to show that the agency's actions
with regard to the incident alleged were motivated by discriminatory
animus.3
Accordingly, the agency's final decision finding no discrimination is
AFFIRMED.
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
February 26, 2009
__________________
Date
1 In her affidavit, complainant lists her national origin as Mexico
and her disability as adhesive capsulitis, forward flexion impingement,
and possible rotator cuff tear.
2 We do not address in this decision whether complainant is a qualified
individual with a disability.
3 While complainant claims on appeal that she was denied several bids
to Tour 2, we note this was not an issue accepted for investigation in
the present complaint.
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0120070125
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120070125