0120072142
08-05-2009
Debora Ray, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Debora Ray,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072142
Hearing No. 480-2006-00396X
Agency No. 4F-926-0003-06
DECISION
Complainant filed an appeal from the agency's final action dated March 19,
2007, finding no discrimination with regard to her complaint. In her
complaint, dated December 14, 2005, complainant alleged discrimination
based on disability (childbirth complications, bulging discs, lower
back pain) when: on August 22, 2005, her medical documentation was not
accepted by the Postmaster and the medical restrictions given by her
doctor were not accommodated; she was harassed by the Postmaster while
she was out on medical leave; and, on August 30, 2005, she was issued
a letter of warning for unsatisfactory conduct - AWOL.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On March 7,
2007, the AJ issued a decision without holding a hearing, adopting the
agency's motion for decision without 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 incidents. During the
relevant time period at issue, complainant was a City Carrier at the
agency's Wilmington Post Office, Wilmington, California. Specifically,
complainant's duties included relieving regular carriers on their
scheduled days off as she was a utility carrier and her essential
functions of her position included casing and delivering five routes
on a rotating basis. The record indicates that on March 9, 2005, the
agency granted complainant a light duty connected to her pregnancy.
Then, on March 16, 2005, she went out on maternity leave, FMLA, and she
did not come back to work until one year later, on February 28, 2006.
Complainant gave birth on March 28, 2005, and her FMLA expired on June 8,
2005.
Complainant admitted that on May 27, 2005, she and her husband requested a
meeting with her Postmaster in order to request a leave of absence until
January 2006, so that "she could have more time to bond with her child,"
which was denied due to the need of the service. The record indicates
that on June 11, 2005, she provided the Postmaster a doctor's note merely
indicating that she will not be able to return to work until July 11,
2005, without any medical explanations. Thereafter, complainant submitted
her doctor's note on July 11, 2005, indicating that she may return to
work on July 24, 2005, and another note on July 25, 2005, releasing her
to return to work with lifting restriction up to 20 pounds effective
August 22, 2005.
On July 26, 2005, the Postmaster informed complainant that the foregoing
medical documents were insufficient under the Employee and Labor Relations
Manual to justify her absence from work and asked her to submit adequate
medical documentations by August 5, 2005, and her failure to submit such
would result in her being placed on AWOL and subjected to disciplinary
action. On July 28, 2005, the Postmaster, reiterating the August 5, 2005
due date, sent her another letter giving the fax number of the medical
unit's office as requested by complainant's husband. Complainant failed
to submit her medical document by the deadline. Thus, on August 10,
2005, the Postmaster notified complainant that she was being carried as
AWOL since August 6, 2005, and instructed her to attend an investigation
interview on August 17, 2005. Complainant's husband rescheduled the
interview/meeting to August 30, 2005, but complainant did not come to
the meeting. Thus, on August 30, 2005, complainant was issued the letter
of warning at issue, which was later rescinded. Thereafter, on August
31, 2005, complainant submitted to the agency's medical unit, and not the
Postmaster, two conflicting medical documents, i.e., her psychologist note
dated August 31, 2005, restricting her to lifting 5 pounds and her family
doctor's note of August 30, 2005, restricting her to lifting 20 pounds.
Without addressing whether complainant is a qualified individual with
a disability, we find that complainant failed to rebut the agency's
legitimate, nondiscriminatory reasons for the alleged actions.
Furthermore, we find that complainant has failed to show that any
agency actions were motivated by discrimination. Specifically, the
Postmaster issued complainant the alleged letter of warning which was
subsequently rescinded due to her failure to provide sufficient medical
documentation for her absence when her FMLA expired. We also find that
complainant's doctors' note submitted to the Postmaster prior to the
August 5, 2005 deadline did not contain adequate information concerning
her specific medical restrictions relating to the duties of her position,
i.e., casing and delivering the mail. After a review of the record,
we do not find the Postmaster's inquiries during the relevant time
period about complainant's absence were based on any discrimination.
Despite complainant's claim, we also do not find the alleged harassment
sufficiently severe or pervasive to affect a term and condition of her
employment. We also find that complainant has failed to show that any
alleged harassment was discriminatorily motivated. It is noted that
complainant failed to show that she was treated less favorably than a
similarly situated employee under similar circumstances.
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
8/5/09
__________________
Date
2
0120072142
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013