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).