Sharon A. Hild, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 11, 2009
0120071390 (E.E.O.C. Jun. 11, 2009)

0120071390

06-11-2009

Sharon A. Hild, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sharon A. Hild,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071390

Hearing No. 470-2006-00108X

Agency No. 4C-400-0036-06

DECISION

On January 17, 2007, complainant filed an appeal from the agency's January

8, 2007 notice of 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.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as an Express Mail Service Clerk at the agency's Louisville Post Office

in Louisville, Kentucky.

Complainant filed an EEO complaint dated March 27, 2006, alleging that

she was discriminated against on the bases of sex (female) and disability

(ulna release/Thoracic Outlet Compression (TOC) Syndrome, bilateral

carpal tunnel) when: on February 7, 2006, complainant was denied the

opportunity for her personal physician to review a limited duty offer of a

modified assignment, PS Form 2499x, prior to complainant making a decision

whether to accept the limited duty offer of a modified assignment, PS

Form 2499x and, thus, complainant was allegedly forced, under protest,

to accept the limited duty offer of a modified assignment, PS Form 2499x.

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 on December 12, 2006.

The AJ issued a decision on December 29, 2006.

In her decision, the AJ found the agency articulated legitimate,

non-discriminatory reasons for its actions. The AJ noted that

complainant's supervisor (S1) testified that he was not very experienced

in making a limited duty offer of a modified assignment to employees.

The AJ noted that S1 testified that he told complainant on February 7,

2006, that she had to accept and/or reject the limited duty job offer

without her physician's review based upon his understanding of the

printed instructions on the back of the 2499x form. He testified that

on February 7, 2006, he was not aware of complainant's right to have

a physician review the limited duty job offer prior to her decision to

accept or reject it. S1 also testified that it was his belief at the

time of the incident at issue that the job offer was within complainant's

medical restrictions. The AJ noted that on February 6, 2006, S1 had

issued a limited duty job offer to complainant which she rejected based

on her belief that a portion of the duties, performing manual flats,

were not within her medical restrictions.1 S1 stated that he then offered

complainant the new modified job offer on February 7, 2006, which removed

the duties complainant had objected to on February 6, 2006, and which

retained the job duties complainant had previously performed and which

she never complained were outside of her medical restrictions.

The AJ found complainant did not meet her burden in showing that the

agency's actions were motivated by discrimination based on her sex or

disability. With regard to the comparative evidence cited, the AJ found

that complainant failed to show that Comparative 1 or Comparative 2 had

similar medical restrictions or that they reported to the same supervisor

as complainant. Further, the AJ found that the conclusory evidence from

the union steward that she believed S1 had a "problem" supervising women

is not persuasive enough to carry complainant's ultimate burden of proof

regarding the sex discrimination charge.

The agency subsequently issued its notice of final action on January 8,

2007. The agency's final action fully implemented the AJ's decision.

ANALYSIS AND FINDINGS

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 AJ determined, and we agree, that the agency provided legitimate,

non-discriminatory reasons for its actions, which complainant failed to

show were a pretext for prohibited discrimination. Moreover, we note

complainant does not allege that she was denied a reasonable accommodation

to perform the essential functions of her position; nor does she allege

that she was forced to work beyond her restrictions.2

Accordingly, the agency's notice of final action is AFFIRMED.

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

June 11, 2009

__________________

Date

1 Complainant did not perform the manual flat duties on February 6,

2006, which she claimed violated her medical restrictions.

2 We do not address whether complainant was a qualified individual with

a disability.

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0120071390

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120071390