Karenv.Selby, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area), Agency.

Equal Employment Opportunity CommissionNov 21, 2000
01981213 (E.E.O.C. Nov. 21, 2000)

01981213

11-21-2000

Karen V. Selby, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area), Agency.


Karen V. Selby v. United States Postal Service (Alleg./Mid -Atl. Region)

01981213

November 21, 2000

.

Karen V. Selby,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Mid-Atlantic Area),

Agency.

Appeal No. 01981213

Agency No. 1D-235-0001-96

Hearing No. 120-96-5698X

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 Section 501 of

the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. �

1614.405.<2> Complainant alleges she was discriminated against on

the basis of physical disability (back problem) when, as a Transitional

Employee (TE), she received a termination notice due to her irregular

attendance on November 29, 1995, effective November 27, 1995. For the

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

The record reveals that complainant, a TE at the agency's Newport

News, Virginia Remote Encoding Center facility, filed a formal EEO

complaint with the agency on January 8, 1996, 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).

Determining that there was no dispute as to any material fact and that

there was sufficient information on which to base a decision, however,

the AJ issued a decision without a hearing, finding no discrimination.

While the AJ queried whether complainant was an individual with a

disability, the AJ concluded that, assuming arguendo, complainant

established that she suffered from a disability, the agency articulated

legitimate, nondiscriminatory reasons for terminating her, namely,

that inasmuch as complainant failed to report for work for over two

months without providing medical documentation to cover her absences,

as required by agency regulations, the agency reasonably assumed that she

had abandoned her employment. The AJ determined that complainant failed

to show that this legitimate, nondiscrimination explanation amounted

to a pretext to mask discriminatory motives. The AJ also found that

assuming complainant was a member of a protected group, she failed to

meet any of the remaining criteria for establishing a prima facie case

in a termination action, namely, that she was meeting the legitimate

expectations of her employer and that she was discharged without cause

or that she was singled out for termination while similarly situated

employees not in her protected group were treated more favorably.

Specifically, the AJ found that while complainant had mentioned to her

supervisor that she might need back surgery, she failed to contact

her supervisor or submit any medical documentation during her two

month absence. In addition, complainant did not submit any medical

documentation or argument would support the notion that from September

to November 1995, she was unable to notify the agency as to the status

of her condition, when she would report for duty, or why she was absent

without leave (AWOL). The agency's final decision concurred with the

AJ's recommended decision finding no discrimination.

On appeal, complainant contends that at the time she was terminated,

the agency was �completely aware� of her condition and had advised her

that her job would not be jeopardized by her illness. She proffers her

10 percent disability rating from the Department of Veterans Affairs

(VA) and the ruling by the Social Security Administration that she

was disabled beginning September 20, 1995 (the last day she worked for

the agency) as evidence that she is entitled to the protection of the

Rehabilitation Act. She states that she had submitted two motions to

compel the agency to send her documentation that would support her case,

but that the AJ did not grant her motions. Complainant does not specify

such documentation or indicate why it would support her contentions. The

agency did not reply to complainant's contentions on appeal.

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 note that complainant

had been AWOL between September 27, 1995, and the date of her removal.

While she subsequently submitted medical documentation establishing that

she had a herniated disc, she did not submit any medical documentation

to the agency during the time in question or otherwise explain why

she was not reporting to work. As to her motion to compel discovery

documentation from the agency which the AJ did not grant, none of the

requested documentation (such as documentation regarding the hiring of

persons with 30 percent disability ratings from the VA) appears to be

relevant to establishing that complainant was subjected to discrimination

when she was terminated. Therefore, we find no indication that the AJ

acted improperly in not granting her motion to compel. While complainant

had mentioned to her supervisor that she may need surgery, she did not

contact agency officials or provide required documentation during the

time in question and did not thereafter establish that her impairment

was such that it rendered her incapable of complying with the agency

regulations regarding notification.

In view of the above, we discern no basis to disturb the AJ's

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

complainant's contentions on appeal, and arguments and evidence not

specifically addressed in this decision, we AFFIRM the agency's final

decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

November 21, 2000

Date

1The 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.

2 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 29 C.F.R. Part 1614, where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at www.eeoc.gov.