01984247
07-19-2001
Sandra Fiedler-Ricca, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Allegheny Area), Agency.
Sandra Fiedler-Ricca v. United States Postal Service
01984247
July 19, 2001
.
Sandra Fiedler-Ricca,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Allegheny Area),
Agency.
Appeal No. 01984247
Agency No. 1C-151-1051-96
Hearing No. 170-97-8149X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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.<1> The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges was
subject to disparate treatment based on sex (female), age (D.O.B. 7/2/49),
disability (fibromyalgia neck/shoulder), and in reprisal for prior EEO
activity (EEO complaints raising claims under Title VII, the ADEA,
and the Rehabilitation Act) when: (1) a Senior Injury Compensation
Specialist (SCS) wrote comments that delayed and caused non-payment
from the Office of Workers Compensation (OWCP) from October 11, 1995
through December 30, 1995; (2) on January 16, 1996, the SCS initially
denied complainant's request for sick leave for January 14, 1996 based
on insufficient documentation; and (3) on February 23, 1996, complainant
received a package of photocopied documentation which needed to be sent
to OWCP by the SCS.
The record reveals that complainant, a Rehabilitation Distribution Clerk
at the agency's bulk mail facility in Pittsburgh, Pennsylvania, filed
a formal EEO complaint with the agency on May 21, 1996, alleging that
the agency had discriminated against her as referenced above, and also
raising seven additional claims.<2> The agency accepted the instant three
claims for investigation, and at the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing dated March 4, 1998, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination on any alleged basis. Specifically, the AJ found that
complainant was an individual with a disability within the meaning of
the Rehabilitation Act, but that she failed to raise an inference of
disparate treatment on any basis through comparative or other evidence.
Further, with respect to the third issue, the AJ found that complainant
was not aggrieved in that no adverse action was alleged. Finally,
the AJ found that even assuming arguendo complainant had established
a prima facie case on any alleged basis, the agency had articulated
legitimate, nondiscriminatory reasons for its actions, which complainant
had failed to show, by a preponderance of the evidence, were a pretext
for discrimination. The agency's final decision adopted the AJ's findings
and conclusions.
On appeal, complainant contends, inter alia, that the SCS's written
comments on complainant's OWCP form submitted November 20, 1995, in which
the SCS questioned why complainant's ability to work was compromised more
than during prior flare-ups, evidenced discriminatory intent given the
medical documentation which had already been submitted to OWCP over the
course of her employment. She further contends that the SCS's actions
were contrary to applicable OWCP claim processing procedures, and that the
documentation complainant submitted was consistent with OWCP requirements.
The agency requests that we affirm its final decision.
In reviewing this matter, we do not address the question of whether or
not the AJ was correct in concluding that complainant is a qualified
individual with a disability within the meaning of the Rehabilitation
Act. Rather, we find that even assuming arguendo complainant is a
qualified individual with a disability, complainant has not established
discrimination on any alleged basis.
Specifically, after a careful review of the record, based on McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), the Commission agrees
with the AJ that complainant failed to establish prima facie cases of
disparate treatment based on sex, age, or disability because she relies
primarily on comparative evidence, yet her identified "comparators"
were not similarly situated. As complainant concedes on appeal, the SCS
"does not handle the cases of any comparison employees." It is well
established that in order for employees to be considered similarly
situated, all relevant aspects of the employees' work situation must
be identical or nearly identical. This requires that they engage in
the same conduct, report to the same supervisor, perform the same job
function, and have equivalent pertinent records. See Jones v. United
States Postal Service, EEOC Appeal No. 01983491 (April 13, 2000);
Hunter v. U.S. Postal Service, EEOC Request No. 05960762 (October
1, 1998). Moreover, with respect to complainant's reprisal claim,
to establish a prima facie case complainant must demonstrate that:
(1) she engaged in a protected activity; (2) the agency was aware of
the protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 25, 2000). In the instant
case, although the evidence demonstrates that complainant had engaged in
prior EEO activity of which the SCS was aware over a period of years,
there is insufficient evidence of a nexus between the prior protected
activity and the alleged adverse treatment here at issue.
Accordingly, the Commission finds that the AJ's decision properly
summarized the relevant facts and referenced the appropriate
regulations, policies, and laws, and we discern no basis to disturb
the AJ's decision. 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 (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
July 19, 2001
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2The agency dismissed the other seven claims raised in the formal
complaint, but on appeal this Commission reversed the dismissal,
and remanded the claims for processing. See Fiedler- Ricca v. United
States Postal Service, EEOC Appeal No. 01966183 (September 11, 1997).
Complainant nevertheless filed a request for reconsideration, which
was denied as untimely filed. See Fiedler-Ricca v. United States
Postal Service, EEOC Request No. 05980110 (November 4, 1999). However,
following the Commission's remand order, the agency proceeded to process
the remanded seven claims, on which an EEOC Administrative Judge (AJ)
issued a decision without a hearing on August 14, 1998, finding no
discrimination. The agency issued a final decision dated October 14,
1998, adopting the AJ's findings and conclusions, and complainant did
not appeal from that final agency decision.