Helen Mangano, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 16, 2002
01997247 (E.E.O.C. Apr. 16, 2002)

01997247

04-16-2002

Helen Mangano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Helen Mangano v. United States Postal Service

01997247, 01A01467

April 16, 2002

.

Helen Mangano,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal Nos. 01997247, 01A01467

Agency Nos. 4A-105-1109-96, 4A-105-1027-97

Hearing Nos. 160-97-8692X, 160-98-8519X

DECISION

Complainant timely initiated appeals from the agency's final orders

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination in 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. The appeals are accepted pursuant to

29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS

the agency's final orders.

Appeal No. 01997247

The record reveals that complainant, a Clerk (ODIS), PS-6 at the agency's

Poughkeepsie, New York, Post Office facility, filed a formal EEO complaint

on September 6, 1999, alleging that the agency had discriminated against

her on the bases of race (Caucasian), disability (Adjustment Disorder),

and reprisal for prior EEO activity when, on April 18, 1996, she was

issued a Notice of Termination for failure to comply with instructions

and excessive absence without leave.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). The AJ issued a decision without a hearing, finding no

discrimination. The agency's final order implemented the AJ's decision.

On appeal, complainant restates arguments previously raised with the

AJ. Complainant also contends that the instant case should have been

consolidated with the case that is the subject of Appeal No. 01A01467,

discussed further below.<1> In response, the agency restates the position

it took in its FAD, and requests that we affirm its final order.

After a careful review of the record, the Commission finds that the grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. The Commission finds that, in all material respects, the

AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. Assuming for the

sake of argument that complainant has established coverage under the

Rehabilitation Act as well as Title VII, the agency met its burden of

explanation by showing that complainant had refused to report for her new

assignment and by failing to provide any documentation to explain why she

could not report. Further, construing the evidence to be most favorable

to complainant, it is noted that complainant failed to present evidence

that any of the agency's actions were motivated by discriminatory animus

toward complainant's protected classes. Accordingly, the final agency

order in Appeal No. 01997247 is AFFIRMED.

Appeal No. 01A01467

Prior to the events at issue above, complainant filed a formal EEO

complaint on April 2, 1994, alleging that the agency had discriminated

against her on the bases of race (Caucasian) and color (white) when,

on December 17, 1993, the quarterly ODIS sample selection was withheld

from her.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). The AJ issued a decision without a hearing, finding no

discrimination. The agency's final order implemented the AJ's decision.

On appeal, complainant restates arguments previously raised with the AJ.

The agency filed no reply to this appeal.

After a careful review of the record, the Commission finds that the grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. The Commission finds that, in all material respects,

the AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. Assuming for the sake

of argument that complainant has established coverage under Title VII,

the agency met its burden of explanation by showing that its action in

not providing complainant with the quarterly ODIS sample selection

was the result of a policy change that affected all ODIS Clerks, not

just complainant. Further, construing the evidence to be most favorable

to complainant, it is noted that complainant failed to present evidence

that any of the agency's actions were motivated by discriminatory animus

toward complainant's protected classes. Accordingly, the final agency

order in Appeal No. 01A01467 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 16, 2002

__________________

Date

1It is noted that the two cases were considered together for purposes

of the instant appeal.