01995875
02-06-2002
Angela M. Dishman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Angela M. Dishman v. United States Postal Service
01995875
February 6, 2002
.
Angela M. Dishman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01995875
Agency No. 4-E-590-0039-98
Hearing No. 320-99-8143X
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 Rehabilitation Act The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she
was discriminated against on the basis of disability (ankle), when:
(1) on April 8, 1998, the agency issued a letter of warning to her; and,
on January 14, 1997, and May 1, 1998, management did not allow her to
perform her duties as a letter carrier within her restrictions.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that during the relevant period, complainant was
employed as a PS-05, part-time flexible Letter Carrier at the agency's
Great Falls Postal facility in Montana. On May 15, 1995, complainant
injured her left ankle on the job. She filed a workers' compensation
claim, and the Office of Workers' Compensation Programs (OWCP) awarded her
an 11% permanent partial disability rating for �injury to her lower left
extremity.� On January 14, 1997, the agency extended to complainant a
�Rehabilitative Job Offer� which would provide complainant with employment
as a letter carrier within the restrictions imposed by complainant's
physician. On January 24, 1997, complainant accepted the job offer.
On March 31, 1998, the agency issued a letter of warning to complainant
for being absent without official leave (AWOL) during her lunch break on
March 11, 1998. The record reflects that this was not the first time
that the agency had taken disciplinary action against complainant for
improperly extending her lunch break.
Complainant sought EEO counseling and subsequently filed a formal EEO
complaint with the agency on May 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).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of disability discrimination. Specifically, the AJ found that
complainant did not show that she was a qualified individual with a
disability. The AJ also concluded that complainant did not establish
that her impairment limited her activity of walking.
On appeal, complainant contends that the AJ erred when he concluded
that there were no material facts in dispute. In particular,
complainant contends that the agency did not comply with the terms of
the Rehabilitative Job Offer by not utilizing her to the maximum to case
and deliver mail on mounted routes. In response, the agency requests
that we affirm its final decision.
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there is no genuine issue of
material fact. This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non- moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions.<1>
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether s/he has
demonstrated by preponderance of the evidence that the agency's reasons
for its actions merely were a pretext for discrimination. Id.
After a careful review of the record, the Commission finds that the AJ did
not err when he concluded that there were no genuine issues of material
fact in this case. In finding no discrimination, the AJ relied on the
fact that complainant did not show that she was a qualified individual
with a disability. The Commission also finds that even assuming,
arguendo, that complainant is a qualified individual with a disability,
the agency has articulated legitimate, nondiscriminatory reasons for
its actions.
The record establishes that complainant was issued a Letter of Warning
because on March 11, 1998, she was AWOL. In point of fact, complainant
admitted that her meeting with a loan officer took longer than she had
anticipated. In addition, complainant did not present any evidence that
other employees were treated more favorably under similar circumstances.
Thus, we find that complainant did not show that the agency's proffered
reason was a pretext for discriminatory animus based on her disability.
In regard to the agency not permitting complainant to perform her
duties within her restrictions, we find that the record reflects that
complainant would prefer to be reassigned to a different position in
the Clerk craft. However, an employer is not required to provide
an individual with a disability the accommodation of preference.
The record reflects that complainant was placed in a position within
her Carrier craft as an accommodation and that her assigned duties are
within her medical restrictions. Insofar as complainant contends that
she is not utilized �to the maximum to case and deliver mail on mounted
routes,� the agency asserts that there were not enough vehicles to permit
complainant's request of a mounted route. The record establishes that
when there were adequate vehicles available, complainant was used.
Accordingly, after a careful review of the record, the Commission finds
that the AJ correctly determined that there were no genuine issues of
material facts. We also find that the AJ's decision summarized the
relevant facts and reference the appropriate regulations, policies,
and laws. We discern no basis to disturb the AJ's decision. Therefore,
after a careful review of the record, including complainant's contentions
on appeal, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
February 6, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 Because we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions, we do not reach the issue of
whether complainant is a qualified individual with a disability.