01981725
06-20-2001
Lucille E. Taylor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Lucille E. Taylor v. United States Postal Service
01981725
June 20, 2001
.
Lucille E. Taylor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01981725
Agency No. 4F-940-1062-96
Hearing No. 370-96-2765X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) 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.; the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges she was discriminated against on the bases of race (Black),
color (black), religion (Christian), age (D.O.B. 3/4/48), disability
(right shoulder tendonitis) and reprisal (prior EEO activity) when:
(1) she received Letters of Warning on October 17, 1995 and October 28,
1995; (2) on November 17, 1995, complainant's supervisor (CS) allegedly
followed her to her locker; (3) on November 28, 1995, a co-worker was
allegedly allowed to use abusive language toward her and hide her mail;
(4) on November 28, 1995, she was allegedly denied use of the telephone,
told to leave the facility and CS bumped her with his stomach; and (5)
on November 29, 1995, CS denied her the ability to work (by ejecting
her from the facility as disruptive). For the following reasons, the
Commission AFFIRMS the FAD.
At the time in question, complainant, a Letter Carrier at the agency's
North Beach Station, San Francisco, California (�facility�), was
working a limited duty assignment in October and November of 1995 due
to a shoulder injury. Complainant alleged that on October 12, 1995,
CS asked her to perform work beyond her medical restrictions, and when
she refused to do so, she was issued a Letter of Warning on October
17, 1995. Complainant alleged that she subsequently had several other
altercations with CS. Believing she was a victim of discrimination,
complainant filed a formal EEO complaint with the agency on December
22, 1995, 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). Following a hearing, the AJ
issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of race, color, religion or age discrimination. Specifically, regarding
complainant's religion and age claims, the AJ found that there was no
evidence presented to indicate that CS knew complainant's religion or age
prior to the alleged altercations. In addition, regarding complainant's
allegations of race and color discrimination, as well as her claims of
religion and age discrimination, the AJ found that complainant failed
to demonstrate that similarly situated employees not in her protected
classes were treated differently under similar circumstances. Further,
the AJ found that the incident wherein complainant alleged that CS
followed her to her locker was not harassment as alleged, as the incident
was not sufficiently severe and pervasive to constitute a hostile work
environment. The AJ noted complainant's allegation that a co-worker
(C1) referred to her as a �black bitch� but found that CS could not be
held responsible for failing to take corrective action since complainant
conceded that she had not told CS that C1 had used such language.
The AJ further found that complainant failed to establish a prima
facie case of disability discrimination. Initially, the AJ found that
complainant failed to demonstrate that she is a qualified individual
with a disability, as there was no evidence establishing that her
shoulder injury was anything more than transitory in nature. The AJ
further found that even assuming arguendo that complainant was an
individual with a disability, she failed to establish a prima facie case
of disparate treatment, as there are no similarly situated employees
who were treated differently. In addition, the AJ found that while
complainant alleged she was given the October, 1997 Letter of Warning
for refusing to work outside of her medical restrictions, the record
refuted this allegation.<1> In addition, the AJ found that complainant
failed to establish a prima facie case of retaliation given CS's limited
knowledge of complainant's prior EEO activity. The AJ found that even
assuming that complainant established a prima facie case of retaliation,
the agency articulated legitimate, nondiscriminatory reasons for the
actions taken, namely that complainant was issued the Letters of Warning
as she failed to comply with instructions and was Absent without Leave,
CS followed complainant as she did not respond to his questions and
ejected her from the facility as she was disruptive and threatening.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination and/or retaliation. The agency's FAD implemented the
AJ's decision. Complainant makes no new contentions on appeal, and the
agency requests that we affirm its FAD.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
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 initially agree
with the AJ's conclusion that complainant failed to establish that CS
discriminated against her on the bases of her race, color, religion or
age. In addition, even if it is assumed that complainant is a qualified
individual with a disability, we find that complainant failed to establish
discrimination under the Rehabilitation Act. While complainant contends
that she was given the October 17, 1995 Letter of Warning for refusing to
work outside of her medical restrictions, we find no basis upon which to
disturb the AJ's finding that the assistance CS required complainant to
provide involved routing flats which would not have required complainant
to work outside of her medical restrictions or otherwise lift greater
than ten (10) pounds. See also Report of Investigation at Affidavit A,
Attachments 29 and 32. Finally, even were we to find that complainant
established a prima facie case of reprisal due to CS's knowledge of
complainant's prior EEO activity, the agency articulated legitimate,
nondiscriminatory reasons for its actions regarding complainant which
we find were not proven to be pretextual in nature. Therefore, after a
careful review of the record and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's FAD.
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
June 20, 2001
__________________
Date
1 The AJ found that while complainant had a ten (10) pound lifting
restriction, she was not asked to lift more than this restriction.