Warena Johnson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Areas), Agency.

Equal Employment Opportunity CommissionJul 12, 2000
01a00457 (E.E.O.C. Jul. 12, 2000)

01a00457

07-12-2000

Warena Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Areas), Agency.


Warena Johnson v. United States Postal Service

01a00457

July 12, 2000

Warena Johnson, )

Complainant, )

) Appeal No. 01a00457

v. ) Agency No. 1J-608-0057-98

) Hearing No. 210-99-6254X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Great Lakes/Mid West Areas), )

Agency. )

____________________________________)

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 Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. � 1614.405). Complainant alleges she

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

(migraines and lower back pain), when her Family and Medical Leave Act

(FMLA) leave was denied on several occasions between January 8 and August

24, 1998. For the following reasons, the Commission AFFIRMS the agency's

final decision.

The record reveals that complainant, a Flat Sorter Machine Operator,

at the agency's Irving Park Road Processing & Distribution Center,

Chicago, Illinois facility filed a formal EEO complaint with the agency

on October 15, 1998, alleging that the agency had discriminated against

her as referenced above. At the conclusion of the investigation,

complainant received a copy of the investigative report and requested a

hearing before an EEOC Administrative Judge (AJ). Following a hearing,

the AJ issued a decision finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of disability discrimination because she failed to establish that

she was an individual with a disability. Specifically, complainant

failed to provide any documents or testimony which would show how her

impairments substantially limited a major life activity. The AJ found

complainant failed to provide evidence as to the symptoms, severity or

duration of her impairments. Thus, the AJ found complainant was not an

individual with a disability, nor did she prove she was regarded as such,

or had a record of a disability.

The AJ also found complainant failed to establish a prima facie case

of sex discrimination in that she failed to demonstrate that similarly

situated employees not in her protected classes were treated differently

under similar circumstances. For instance, the AJ found that the

supervisor who denied complainant's leave requests also denied leave

requests from males who did not submit appropriate documentation.

In sum, the AJ recommended a finding of no discrimination. On September

21, 1999, the agency issued a final decision adopting the AJ's recommended

decision. On appeal, complainant argues that she has substantial

limitation on major life activities. According to complainant, the

symptoms of her migraines include dizziness, nausea and vomiting.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge 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 that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. The record reveals

complainant's leave requests were denied when she refused to comply with

procedures and failed to submit appropriate documentation. Complainant

failed to prove the agency's reason for its action was a pretext for

prohibited discrimination. We also note that complainant failed to

present evidence that any of the agency's actions were motivated by

discriminatory animus toward complainant's sex or alleged disability.

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 (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 12, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.