01984826
07-11-2001
Lydia Perez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lydia Perez v. United States Postal Service
01984826
July 11, 2001
.
Lydia Perez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984826
Agency No. 4E-800-1236-95
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. (1994 & Supp. 4 1999 and Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e-16 (1994 & Supp. 4 1999).
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
On January 23, 1995, complainant was given a seven-day suspension for
failure to be regular in her attendance from August 9, 1994 - January
23, 1995. Complainant grieved the matter and, on February 10, 1995,
the union and agency agreed to reduce the seven-day suspension to
a three-day suspension. On March 21, 1995, Complainant sought equal
employment opportunity counseling and alleged that she was discriminated
against on the bases of her disabilities (rheumatoid arthritis and
carpal tunnel syndrome), and national origin (Hispanic) when she
was suspended; complainant filed a formal complaint on June 12, 1995.
On August 9, 1995, the agency accepted the seven-day suspension issue
for investigation. On September 5, 1995, the suspension was rescinded
and complainant was made whole for lost wages. On September 12, 1996,
the agency issued a final decision which dismissed the complaint as moot.
Complainant appealed the agency's dismissal, arguing that the matter
was not moot and that she was harassed because of her disability and
humiliated by repeated demands for fitness-for-duty examinations.
On appeal, the Equal Employment Opportunity Commission held on October
21, 1997, that the matter was not moot because it was unclear if the
suspensions had been removed from the record,<1> and because complainant
had claimed compensatory damages. On remand, a supplemental investigation
was conducted, and on February 24, 1998, complainant requested that the
agency issue a final decision. On April 22, 1998, the agency issued
a final decision that complainant failed to show that she was treated
differently from similarly situated employees because of her national
origin (Hispanic), and that she failed to show that she was a qualified
person with a disability. This appeal followed.
ANALYSIS
In her affidavits, complainant did not set out evidence of disability
harassment. Rather, she conclusorily stated that her supervisor
overlooked attendance problems for other employees but not for her because
she was disabled. Presuming complainant is a qualified person with
disabilities, no evidence showed that complainant was treated differently
than similarly situated employees. Indeed, the supervisor responsible
for issuing the suspension attested that she did not supervise other
employees identified by complainant who purportedly received better
treatment, and that other comparators had not been as irregular in
attendance as was complainant.
Complainant attributed her irregular attendance variously to the agency's
refusal to excuse her absences despite its policy to allow employees
to leave work on slow volume days, and to her inability to improve her
attendance due to her disabilities. Complainant's evidence fails for
lack of consistency and proof.
Complainant adduced no evidence of harassment, nor did she show that the
agency failed to accommodate a need to be absent from the job. 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 FAD. Because complainant did not prevail,
she is not entitled to an award of damages.
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
July 11, 2001
__________________
Date
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:
__________________
Date
______________________________
1 On September 12, 1996, complainant's witness wrote an unsworn statement
that the notice of suspension and two 1994 letters of warning were in
complainant's file (presumptively her official personnel file). In her
May 19, 1998 letter to the Equal Employment Opportunity Commission
complainant asserted that the discipline notices had been removed from
her file.