01993683
12-08-2000
Yvonne D. Nelson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Yvonne D. Nelson v. United States Postal Service
01993683
December 8, 2000
.
Yvonne D. Nelson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01993683
Agency No. 4H370121696, 4H370006397
Hearing No. 250978292X, 250988058X
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., 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 she was discriminated
against on the bases of race (African-American), sex (female), retaliation
(prior protected activity) and disability (dog bites resulting in injury
to right leg, post traumatic stress and depression) when:
(1) on June 18, 1996, she was placed on emergency suspension; and
November 15, 1996, she was not given proper assistance from an
occupational health nurse to return to work.<2>
For the following reasons, the Commission AFFIRMS the agency's final
decision.
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).
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 AJ queried whether
complainant established that she was an individual with a disability, or
otherwise established a prima facie case of discrimination on any basis
inasmuch as she failed to establish that individuals outside of any of
her protected classes were treated more favorably than she under similar
circumstances. We note that the record supports the AJ's finding that
complainant failed to present evidence that any of the agency's actions
were in retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's sex, race or disabilities.
Accordingly, we need not determine whether complaint was an individual
with a disability, as we discern no basis to disturb the AJ's ultimate
determination that complainant failed to establish discrimination.
Therefore, after a careful review of the record, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 8, 2000
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 29 C.F.R. Part 1614 in
deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2 Complainant, represented by counsel, made no objection at the hearing,
to framing the issues as outlined herein. Hearing Transcript at 7.