0120092089
09-22-2009
Michelle Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michelle Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092089
Agency No. 1G-771-0023-07
Hearing No. 460-2008-00023X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 27, 2009 final action concerning her equal employment opportunity (EEO) complaint alleging 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
During the period at issue, complainant was a Mailhandler at the agency's Houston Processing and Distribution Center in Houston, Texas. Complainant alleged that the agency discriminated against her on the bases of disability (carpel tunnel, left cubital tunnel syndrome, left rotator cuff syndrome, left acromioclavical sprain/strain, cervical radiculopathy, left villonodular synovitis, lumbar strain/sprain) and in reprisal for prior EEO activity when:
(1) on March 27, 2007, she was put off the clock for 15 days and made to request light duty work; and
(2) beginning April 14, 2007, after her return to work, she was harassed each day regarding attendance and light duty requests.
The record reflects that in 2004, complainant suffered an on-the-job injury. The record reflects while complainant returned to work in October 2006 with her doctor's statement that she could perform her pre-injury work without restrictions, she disputed this. During the relevant time, complainant was given full-time modified work. Complainant submitted a request to the Department of Labor (DOL) asking to be allowed to change her treating physician and get a second opinion on her impairment rating. After complainant's request for a second opinion was granted, she received a second medical opinion indicating restrictions in February 2007. The record reflects that the second physician indicated that complainant could return to work with the restriction of no lifting, pushing or pulling with her left arm and hand. The record reflects that in mid-April 2007, the second physician indicated that complainant's restrictions were no heavy lifting and no overhead pushing or pulling. On June 28, 2007, complainant's restrictions were a five-pound lifting restriction and no pulling, pushing or reaching above the shoulder. The record reflects that in May 2007, DOL determined that complainant's condition should be accepted as limited duty.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing by videoconference on January 12, 2009. The AJ appeared from San Antonio, Texas, while the parties and witnesses were located in Houston, Texas. The AJ issued a bench decision on January 27, 2009.
In her January 27, 2009 bench decision, the AJ found no discrimination. The AJ determined that in regard to claim (1), complainant did not establish a prima facie case of reprisal discrimination. However, the AJ found that complainant established a prima facie case of reprisal discrimination concerning claim (2). The AJ nevertheless found that the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
With respect to complainant's disability claim, the AJ determined that complainant established a prima facie case of disability discrimination because she is a qualified individual with a disability. The AJ found, however, that the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
With respect to complainant's harassment claim, the AJ found that complainant did not prove she was subjected to harassment sufficiently severe or pervasive so as to render her work environment hostile.
Regarding claim 1, the AJ noted that in March 2007 complainant was placed off the clock for 15 days while her light duty request was being processed. The AJ further noted that the record reflects the agency, per instructions from DOL, was required to place complainant on light duty. Specifically, the AJ noted that according to complainant's supervisor, he was instructed by Injury Compensation to have complainant submit a CA-2a and a light duty "until the claim is accepted by the Department of Labor."
S1 stated that the light duty request process "calls for the employee to make a request. We have a light duty coordinator, and the employee is also informed that the light duty coordinator will make a decision in two to three days. Sometimes decisions can be made in less than that time, but it depends on the restrictions and what type of duties they are able to do." S1 stated that on March 28, 2007, complainant made a request for light duty and "pending approval of that request, she was given the option to use leave of her choice. She, to my recollection, refused to make a choice of leave usage but she couldn't be allowed to work until her light duty was approved."
The AJ noted that according to the former Injury Compensation Specialist (S2) she stated that because complainant had initially been released to work with no restrictions but at a later time there was medical documentation indicating restrictions. S2 stated that based on the instructions from DOL, she directed S1 that to have complainant submit a form CA-2a and place her on light duty until DOL makes a ruling concerning the recurrence.
Regarding claim 2, the AJ noted that one of the actions which complainant considered to be harassment was the issuance of the June 8, 2007 Letter of Warning (LOW). The AJ noted that according to S1, he issued complainant the subject LOW because she had 11 unscheduled absences from November 27, 2006 to May 20, 2007.
With respect to complainant's allegation that S1 harassed her by watching her work, the AJ concluded that a review of the record reflects that S1 watched all the employees work. In his testimony, S1 stated that his job "is to monitor all the operations...so a part of my job was to walk around, just to make sure that folks were working."
On appeal, complainant argues that the AJ erred in finding no discrimination. Complainant states for example, that the AJ should have directed the agency to reimburse complainant for being put off the clock for 15 days.
In response, the agency argues that complainant's appeal is untimely filed because it was filed 36 days after the February 27, 2009 final action. The agency allowed five days for mailing of the final action and determined that complainant had received the final action by March 4, 2009. The final action included a delivery confirmation number for the U.S. Postal Service "Track & Confirm" computerized tracking system.
EEOC Regulation 29 C.F.R. � 1614.402(a) states, in pertinent part, that an appeal must be filed within 30 days of receipt of the final action. The Commission has held that United States Postal Service "Track & Confirm" printouts, which indicate delivery dates for zip codes only, are not specific enough to determine whether complainant has received correspondence. Consequently, we determine that there is no evidence, other than a generalized reference to a city and zip code to indicate when complainant actually received the final action. The Commission therefore deems the appeal timely filed.
As an initial matter, we again note that the AJ chose to conduct this hearing by videoconference. In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id.
In the instant case, the AJ, as in Allen, there is no indication of objection to the use of video-conferencing by either party. Under these circumstances, the Commission concludes that the AJ did not abuse her discretion by electing to hold a videoconference hearing.
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9 � VI.B. (November 9, 1999).
The Commission determines that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the AJ's finding of no discrimination. Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 22, 2009
__________________
Date
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0120092089
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092089
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