Angela M. Dishman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.

Equal Employment Opportunity CommissionFeb 6, 2002
01995875 (E.E.O.C. Feb. 6, 2002)

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.