01973125
03-16-2000
Lisa Collie, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.
Lisa Collie v. United States Postal Service
01973125
March 16, 2000
Lisa Collie, )
Complainant, )
) Appeal No. 01973125
v. ) Agency No. 1-H-332-1946-93
) Hearing No. 150-95-8125X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Region), )
Agency. )
)
DECISION
INTRODUCTION
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 (Black), national origin
(African American), sex (female), reprisal (prior EEO activity), and
mental disability (stress), 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 that she was discriminated against when: (1) she
was issued a seven-day suspension; (2) she was given a 2:00 a.m. report
time; and (3) her days off were rescheduled to Tuesdays and Wednesdays.
The appeal is accepted in accordance with 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.
BACKGROUND
The record reveals that during the relevant time period, complainant was
employed as a Part-time, Flexible Clerk, assigned to operate a letter
sorting machine at the agency's Fort Lauderdale, Florida facility.
Believing herself to be a victim of discrimination as detailed above,
complainant sought EEO counseling and, subsequently, filed a formal
complaint on November 29, 1993.
The agency accepted the complaint for investigation. At the conclusion
of the investigation, complainant received a copy of the investigative
report(s) and requested a hearing before an EEOC Administrative Judge
(AJ). Following a hearing, the AJ issued a recommended decision finding
no discrimination.
With respect to claim no. 1, in which complainant challenged the propriety
of a 7-day suspension imposed as punishment for poor attendance, the
AJ concluded that complainant failed to establish a prima facie case
of discrimination because she did not identify any similarly situated
employees not in her protected classes who were treated differently
under similar circumstances. Specifically, the AJ found that complainant
had failed to identify any other light or limited duty employees, with
attendance records similar to hers, who had not been disciplined.
The AJ concluded, with respect to claim nos. 2 and 3, that complainant had
failed timely to raise these claims. In addition, the AJ denied these
claims on the alternative grounds that complainant was not aggrieved by
the agency's actions; that complainant had failed to establish a prima
facie case of discrimination; and that the agency had articulated a
legitimate, nondiscriminatory reason for its actions which complainant
had been unable to prove to be a pretext for discriminatory animus.
The AJ separately addressed complainant's argument that she had been
subjected to a hostile work environment and concluded that the allegedly
harassing actions, when considered in the context of the totality of the
circumstances, were not so severe as to support a finding of harassment.
Finally, the AJ rejected complainant's claims based on retaliation
for prior EEO activity on the ground that complainant had failed to
prove that prior to the date of the allegedly retaliatory actions the
responsible agency officials were aware that complainant had engaged in
protected EEO activity.
The agency's final decision implemented the AJ's recommend decision.
From the agency's final decision complainant brings the instant appeal.
ANALYSIS AND FINDINGS
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).
In the instant case, the Commission finds that the AJ's recommended
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. The AJ's factual findings concerning
the agency's explanations for its actions were supported by the detailed
testimony of agency officials, most of which remained unchallenged on
cross examination. We discern no basis upon which to disturb the AJ's
recommended decision.<2>
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and 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 (3O) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (2O) 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:
3-16-00
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:
3-16-00
Date
__________________________
Equal Employment Assistant
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.
2 Complainant contends on appeal that the AJ erred in denying her
leave to amend her complaint to add physical disability as a basis of
discrimination. Complainant argues that this amendment should have
been permitted because her physical disability, which resulted from
an on-the-job injury in 1990, was one of the factors that motivated
management to harass her. However, from our review of the record, it
does not appear that complainant was prevented by the AJ from introducing
evidence on this point in support of her harassment claim. For example,
complainant testified at the hearing before the AJ as follows: " . . .I
sustained an on-the-job injury in 1990, and I was being harassed when
I filled out my CA1 claim, and it was ongoing by [my supervisor] on
numerous occasions." Complainant has failed to identify any evidentiary
ruling by the AJ which prevented her from proving her harassment claim
or any other way in which she was prejudiced by the AJ's denial of her
request for leave to amend. We conclude that any error the AJ might
have committed in this regard was harmless. Hines v. Navy, EEOC Request
No. 05960667 (March 26, 1998), fn. 1. ("harmless error" is an error
"whose existence has no impact on the outcome of the case.")