0120101091
06-24-2010
Darlene Shannon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Darlene Shannon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120101091
Hearing No. 471200800132X
Agency No. 1J483001708
DECISION
On January 6, 2010, Complainant filed an appeal from the Agency's December
3, 2009, final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems
the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency's final
order.
BACKGROUND
Complainant sought EEO counseling and subsequently filed a formal
complaint on April 11, 2008, alleging that she was discriminated against
on the basis of disability (job related injury)1 and age (50) when,
on December 15, 2007, she was issued a one-week suspension for failure
to adhere to attendance regulations.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over the Complainant's objections, the AJ
assigned to the case granted the Agency's October 1, 2008 motion for
a decision without a hearing, and issued a decision without a hearing
on November 23, 2009, in favor of the Agency. The Agency subsequently
issued a final order adopting the AJ's finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
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. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She
must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
In the instant complaint, Complainant alleges that the Agency
discriminated against her when, on December 15, 2007, she was issued
a one-week suspension for failure to adhere to attendance regulations.
The AJ concluded in his decision that Complainant failed to establish a
prima facie case of discrimination on any alleged basis. Specifically,
the AJ determined that Complainant failed to demonstrate that similarly
situated individuals were treated more favorably than Complainant in
similar circumstances. The AJ further found that the Agency articulated
legitimate non-discriminatory reasons for its actions. The record
indicates that Complainant had 21 incidents of unscheduled leave and late
arrivals for which she failed to submit documentation required for an
excused unscheduled absence. Complainant alleges that the leave she took
should have been covered under the guidelines established by the Office
of Workers' Compensation Programs (OWCP) or the Family Medical Leave Act
(FMLA). However, the record further indicates that Complainant failed
to submit the medical documentation and certification necessary to have
these absences and late arrivals covered by these programs.
The Complainant's arguments in this matter do not establish that the
Agency's articulated reasons were pretext for discrimination in issuing
her a one-week suspension for her failure to adhere to established leave
procedures. The Commission has examined the Complainant's contentions,
but finds no persuasive evidence that Agency management issued the
disciplinary action based on discriminatory animus. The Commission
concurs with the decision of the AJ in this matter that Complainant
failed to establish a prima facie case of discrimination as alleged and
that the Agency articulated legitimate, non-discriminatory reasons for
its actions.
Because the Agency articulated legitimate, non-discriminatory reasons for
its actions, Complainant is required by law to show that the reasons are
a pretext for discrimination. Having considered Complainant's assertions,
the Commission finds that Complainant has not established pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, it is the decision
of this Commission to AFFIRM the Agency's final order, because the
AJ's issuance of a decision without a hearing was appropriate and a
preponderance of the evidence does not establish that discrimination
occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
June 24, 2010
__________________
Date
1 For purposes of analysis, the Commission assumes without finding that
Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(i).
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0120101091
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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