Lisa Collie, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01973125 (E.E.O.C. Mar. 16, 2000)

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.")