01986052
02-29-2000
Susan S. Lam, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Susan S. Lam v. United States Postal Service
01986052
February 29, 2000
Susan S. Lam, )
Complainant, )
) Appeal No. 01986052
v. ) Agency No. 1A-111-0022-98
) Hearing No. 160-98-8345X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On July 10, 1998, Susan S. Lam (the complainant) timely filed an appeal
with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated June 26, 1998, concerning her
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The Commission hereby accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against her
based on sex (pregnancy) when on September 22, 1997, management limited
the number of employees on light duty and denied her the opportunity
to work.
BACKGROUND
Complainant was employed by the agency as a Mail Processor at the Queens,
New York Processing and Distribution Center Facility. She requested
light duty on April 17, 1997, due to her pregnancy. On September 17,
1997, management informed complainant and the other 25 employees on
her tour of duty who were on light duty that from that point forward
management was going to enforce the provision in the local collective
bargaining agreement that limited the number of employees on light duty
on that tour to six. Those six light duty slots were to be filled on
the basis of seniority, with a monthly rotation. Complainant was not
one of the first six employees to be given light duty under this policy,
and she was informed she would not be working until further notice
because there were no more light duty slots open.
Complainant filed a formal complaint on October 24, 1997, alleging
discrimination on the basis of sex (pregnancy) when she was denied the
ability to work on light duty because management unilaterally decided
not to offer more than the number of light duty assignments required by
the local bargaining agreement. The agency accepted the complaint for
investigation and processing. At the conclusion of the investigation, the
agency issued a copy of its investigative report and notified complainant
of her right to request an administrative hearing. Complainant timely
requested a hearing before a Commission Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
In his Findings and Conclusions, the AJ found that under the Pregnancy
Discrimination Act of 1978 (PDA), 42 U.S.C. � 2000e(k), a woman affected
by pregnancy, childbirth or related conditions must be treated the same
for all employment related purposes as other persons not so affected,
but similar in their ability or inability to work.<2> Accordingly,
a person who is pregnant who seeks light duty must be treated in a like
manner to all others who are afforded light duty and given neither greater
or less consideration with respect to their rights to light duty. He
found that the complainant was treated the same as the other employees
on light duty who were not pregnant, and that the PDA did not provide
for a privilege or special consideration for women who are pregnant.
Therefore, he concluded, complainant had not been discriminated against
on the basis of her sex.
The agency's final decision accepted the AJ's conclusions of fact and
law and found that the complainant had not been discriminated against.
This appeal followed.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the
AJ's Findings and Conclusions correctly summarized the relevant facts
and referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that the agency's actions were
motivated by discriminatory animus toward complainant's sex or pregnancy.
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, and because the agency adopted the Findings
and Conclusions of the AJ, we affirm the agency's final decision.
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
___02-29-00___________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2 The PDA amended Title VII to specify that discrimination on the basis
of pregnancy constitutes sex discrimination. It requires that for all
employment related purposes, pregnant employees shall be treated the
same as other employees similarly situated with respect to their ability
to work. See, e.g., Ensley-Gaines v. United States Postal Service,
100 F.3d 1220 (6th Cir. 1996); Robertson v. U.S. Postal Service, EEOC
Request No. 05980323 (October 1, 1998).