0120071135
05-08-2009
Concordia D. Tindal, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Concordia D. Tindal,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071135
Hearing No. 550-06-00182X
Agency No. 1F-955-0006-06
DECISION
Complainant filed an appeal from the agency's final action dated November
14, 2006, finding no discrimination with regard to her complaint.
In her complaint, complainant alleged discrimination based on race
(Filipino), disability (eyes), and in reprisal for prior EEO activity
when on January 6, 2006, she was denied reasonable accommodation and
was subjected to Absent Without Leave (AWOL) actions.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On October
27, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's 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. 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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged action. During the relevant
time period at issue, complainant was employed as a group leader custodian
for the agency. In 2004, prior to the alleged incidents, complainant
was diagnosed with advanced tear deficiency (dry eyes) requiring her to
administer eye drops in the morning before coming to work. Complainant
experienced reduced visual clarity for 1 1/2 hours after taking her
eye drops. The agency stated that complainant was previously approved
FMLA for the first two hours of her tour until January 2006, at which
time the agency requested a new certification for her continuing FMLA,
but she failed to provide such documentation.
Specifically, complainant's supervisor stated that on February 6, 2006, he
was instructed by the FMLA Coordinator not to approve complainant's FMLA
leave anymore without proper documentation, but he continued to approve
such "pending documentation." The supervisor placed complainant on
AWOL for her consistently coming to work late, i.e., up to 2 hours late,
during the relevant time period at issue. The supervisor indicated that
on April 19, 2006, he told complainant that he could no longer approve
her FMLA leave requests without providing him with the requested medical
documentation. In May 2006, he referred complainant to the District
Reasonable Accommodation Committee, but she refused to attend a meeting.
The supervisor also offered to delay complainant's tour of duty to begin
at 9:30 am to accommodate her eye condition, but she refused to accept
such a schedule.
The AJ found, and we agree, that the agency presented legitimate,
non-discriminatory reasons for its actions and that complainant failed
to rebut the agency's legitimate, nondiscriminatory reason for the
alleged action. Assuming (without deciding) that complainant was an
individual with a disability, the Commission finds that complainant
failed to show that she was denied a reasonable accommodation or that
the agency's actions were motivated by discrimination. Complainant does
not allege that she was required to perform duties beyond her medical
restrictions.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
5/8/09
__________________
Date
2
0120071135
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013