01a50974_r
12-29-2005
Lynn A. Watson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lynn Watson v. United States Postal Service
01A50974
December 29, 2005
.
Lynn A. Watson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50974
Agency No. 4C-442-0126-01
Hearing No. 220-A3-5235X
DECISION
Complainant appeals to the Commission from the agency's October 4, 2004
decision finding no discrimination. Complainant alleges discrimination
on the bases of race (White), color (white), sex (female), age (date
of birth: September 2, 1947), disability (arthritis in both hands;
psychological), and retaliation, when from February 14, 2001 through
March 2001, her supervisor harassed her by questioning her ability to
complete her route, comparing her to younger carriers, by submitting
the wrong papers to the Office of Workers' Compensation Programs
(OWCP), and, by issuing her a Notice of Removal on March 19, 2001.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). After holding a hearing, the
AJ issued a decision on September 27, 2004, finding no discrimination.
The agency, on October 4, 2004, issued a decision implementing the AJ's
decision finding no discrimination. Complainant now appeals from the
agency's October 4, 2004 decision.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
The AJ found that the agency asserted legitimate, non-discriminatory
reasons for its actions which complainant failed to rebut. We agree with
the AJ. The AJ found that the conduct of complainant's supervisor was
not harassing and was not motivated by discrimination.
The AJ found:
Based on a review of the evidence, it is clear that [complainant's
supervisor] did count the [c]omplainant's mail, observe her on the street
while she was delivering mail, verbally pressure her to complete her
route in eight hours a [day], failed to properly complete her workers'
compensation paperwork and issued her [a Notice for Removal]. [The
Supervisor's] conduct towards the [c]omplainant was that of a manager,
it was not the equivalent of unwelcome harassment based on any of the
protected classes cited by the [c]omplainant.
Clearly, [the Supervisor] believed that the [c]omplainant's route should
have been completed in eight hours. In fact, other letter carriers had
delivered the route in eight hours or less . . . It does appear that
[the Supervisor's] sole motivation was to get the [c]omplainant to carry
the route within eight hours or get her off of the route so that someone
else could come in and carry it within eight hours. . . .
Regarding the issue of the extended processing of her workers'
compensation claim, [the Supervisor] credibly testified that he made an
unintentional error . . .
[The supervisor] did credibly testify that he did not want to see the
[c]omplainant lose her job, he just wanted to impress upon her the
importance of making a change in her performance. He referred her to
the EAP program . . . and suggested that she look into a transfer into
another craft . . .
Regarding the Notice of Removal, the AJ found that the discipline was
supported by the record and by the agency's progressive discipline
policy. The Notice of Removal listed three infractions: Unsafe Work
Practice/Failure to Follow Instructions when complainant was observed
delivering mail without a mail bag on January 29, 2001; Deviation from
Route Sequence Travel on February 17, 2001; and Unauthorized Overtime
on February 22, 2001.
We find that substantial evidence supports the AJ's findings that none
of the alleged incidents of harassment were motivated by anything other
than the Supervisor's desire for complainant to properly complete her
job function. Furthermore, substantial evidence supports the AJ's
findings that none of the actions at issue in the complaint, including
the Notice of Removal, were motivated by discrimination. We make this
determination without making a finding as to whether complainant is an
individual with a disability under the Rehabilitation Act.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
December 29, 2005
__________________
Date