01a43194
07-06-2005
Carmen M. Olesen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carmen M. Olesen v. United States Postal Service
01A43194
July 6, 2005
.
Carmen M. Olesen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43194
Agency No. 1B-065-0004-03
Hearing No. 160-A4-0013X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant was employed as a PS-5 Mail Processing Clerk in a Connecticut
facility of the agency. Believing she was a victim of discrimination,
complainant initiated EEO contact and, subsequently, filed a formal
complaint alleging that the agency discriminated against her on the bases
of national origin (Hispanic), sex (female), disability (Carpel Tunnel
Syndrome/Torn Rotator Cuff), and reprisal for prior EEO activity when
it (1) on October 3, 2002, issued her a Notice of 14-day Suspension<1>
charging her with �Improper Conduct: Failure to Follow Instructions� on
September 14, 2002 and (2) on November 18, 2002, placed her in off-duty
status without pay for �engag[ing] in loud, threatening abusive behavior
towards a postal supervisor.� Complainant explained her allegations in
a hand-written affidavit as well as two type-written signed statements.
Regarding claim (1), in a signed statement, complainant stated that she
asked her supervisor (S1) to give her more mail to sort and S1 responded
that she would not do so because other workers could sort the mail faster.
Complainant stated that she told S1 she was capable of completing
additional work and S1 became hostile, stated that complainant was a
safety hazard, and instructed her to leave the work area. Complainant
explained that she visited the manager's office immediately after S1
instructed her to leave the work area and another supervisor who was in
the office (S2) invited her outside to discuss the matter. Complainant
averred that she and S2 spoke beyond the end of her tour of duty (tour)
and that she was afraid to return to the work area due to the possibility
of a confrontation with S1. Complainant indicated that she forgot to
end her tour and that a union steward retrieved her badge for her.
In a signed statement, S2 corroborated complainant's assertions.
Specifically, S2 stated that complainant entered the manager's office
visibly upset approximately ten minutes before the end of her tour and
asked that someone call the postal or local police. S2 stated that, then,
complainant walked outside and she followed to learn what troubled her.
She indicated that complainant informed her that she was instructed by
S1 to leave the work area because she was a safety hazard.
With regard to claim (1), in an investigative affidavit, S1 stated that,
when she became complainant's supervisor, complainant indicated that
she had an arm injury and expressed concern about incurring additional
injury by someone bumping into her. S1 explained that complainant used
a rehabilitation chair and footrest and that all employees who used
rehabilitation chairs were asked to move them before �tie out� to prevent
injury. She stated that, on September 14, she asked complainant to move
to another case because she planned to �tie out� soon and complainant
responded by speaking loudly, leaving the area, and not returning.
S1 stated that the 14-day suspension was issued as progressive discipline
and complainant was placed on leave without pay because she did not return
to work for the last 15 minutes of her tour and did not �clock out.�
As to claim (2), in a signed statement, complainant stated that S1
instructed her to move to a new work case and she proceeded to the new
case while asking to speak with a union steward. Complainant stated
that S1 became hostile and questioned her need to speak with a steward.
Complainant stated that, when she arrived at the new case, she asked a
coworker to retrieve her chair and to load her ledge with mail, due to
her medical restrictions, and that S1 became more hostile. She stated
that S1 informed her that she could speak with a steward for one minute,
at which time she responded by asking to also speak with the manager
of distribution operations and a postal inspector. Complainant stated
that S1 accused her of refusing to work. She indicated that she did not
behave in a disruptive manner, but that S1 and another supervisor (S3)
removed her from the work room floor. Complainant contends that coworkers
outside of her protected classes were allowed to voice objections to S1
without discipline.
Regarding claim (2), S1 stated that she asked complainant to move because
she expected the work area to become congested and did not want anyone
to bump complainant's arm. S1 stated that complainant became loud,
disruptive, and threatening. S1 indicated that complainant informed her
that she should have moved a junior clerk before moving her. Further,
S1 stated that complainant did not case the mail as instructed but
instead asked questions continuously without allowing S1 an opportunity
to respond. S1 added that complainant became alarmed when she informed
her that she could meet with the steward for five minutes only because
the matter was not an emergency and they were processing critical mail
at the time. S1 stated, ultimately, complainant yelled for the postal
police, the postal inspectors and a steward and pointed her finger down
the work aisle at S1. S1 stated that she and S3 asked complainant to
leave the workroom floor and placed her on emergency administrative leave.
Without a hearing, an EEOC Administrative Judge (AJ) issued a
decision finding no discrimination. Specifically, the AJ concluded
that complainant failed to show that similarly situated individuals
outside of her protected classes were treated more favorably than she
or that she is an individual with a disability. The AJ reasoned that
complainant failed to show that she was substantially limited in a
major life activity. Finally, the AJ found that complainant failed to
show that the legitimate, nondiscriminatory reasons articulated by the
agency for its actions were pretextual. The agency issued a final action
implementing the AJ's summary judgment decision. Complainant appealed.
On appeal, complainant states that there are genuine issues of material
fact in dispute, such as whether she acted as S1 alleged.
We find that there is a genuine issue of material fact in dispute
and vacate the agency's final action. 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. 29 C.F.R. �
1614.109(g). 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's function is not
to weigh the evidence but rather to determine whether there are genuine
issues for trial. Id. at 249. 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. at 255. An 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.
After a careful review of the record, we find that the AJ erred when
she concluded that there are no genuine issues of material fact in
this case and issued a summary judgment decision. Complainant states
that she did not act as the agency alleged she did in the legitimate,
nondiscriminatory reason it articulated for its actions and we find
that is a genuine issue of material fact. The Commission VACATES the
agency's final action and REMANDS the matter to the agency in accordance
with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
field office a request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. � 1614.109 and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
July 6, 2005
__________________
Date
1We note that the 14-day suspension was
reduced later to a 7-day paper suspension .