0120081188
05-15-2008
Deborah A. New, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deborah A. New,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081188
Agency No. 1C-441-0088-06
Hearing No. 532-2007-00063X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 29, 2007 final action concerning her
equal employment opportunity (EEO) complaint claiming unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
During the period at issue, complainant was employed as a Mail Handler
Equipment Operator, M-05, at the agency's Cleveland Processing and
Distribution Center in Cleveland, Ohio.
On October 20, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against her
on the basis of disability (cervical radiculopathy) when:
she was not scheduled to work her designated holiday of Sunday, September
3, 2006.1
The record reflects that in 2004, complainant suffered an on-the-job
injury and filed a claim with the Office of Workers' Compensation
Program on March 12, 2004. The record further reflects that since 2004,
complainant has sporadically produced the required medical documentation
claiming that she remains injured and is unable to perform the duties
of her position. On May 5, 2006 and June 15, 2006, management offered
complainant modified, limited duty job offers within her restrictions as
identified by her physician. However, complainant rejected the offers.
The record reflects that complainant sits in the cafeteria for eight
hours a day, forty hours a week and does not perform any function.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). On November 27, 2007,
the AJ issued a decision without a hearing, finding no discrimination.
The AJ found that, after viewing the evidence in a light most favorable to
complainant, a decision without a hearing was appropriate as there were no
genuine issues of material fact in dispute. Therein, the AJ determined
that complainant failed to establish that she was an individual with a
disability because she did not show she was substantially limited in
a major life activity. However, the AJ further determined that the
agency had articulated legitimate, non discriminatory reasons for not
scheduling complainant to work on September 3, 2006, and that complainant
did not establish pretext. 2
The Supervisor Distribution Operations (SDO) acknowledged that
complainant's scheduled holiday was September 3, 2006 because she signed
the holiday list. SDO stated, however, that the employees that reported
for duty on September 3, 2006 worked their job assignments that consisted
of "mailhandler equipment operation (tow motor operator)." SDO stated
that complainant's medical restrictions do not allow her to work her
bid assignment. SDO stated that complainant "is on operation 340,
which is a non-productivity operation."
The Acting Manager Distribution Operations (Acting MDO) stated
that complainant was not scheduled to work her designated holiday
"because of her restrictions of not being able to use her hands or arms.
She performs no work but sits in the cafeteria for eight hours per day."
The Acting MDO further stated that complainant "was paid her holiday
pay for September 3, 2006 even though she did not work."
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a 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.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final action,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
May 15, 2008
__________________
Date
1 The record reflects that complainant received holiday leave pay for
September 3, 2006.
2 The Commission presumes, for purpose of analysis only and without so
finding, that complainant is an individual with a disability.
??
??
??
??
2
0120081188
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081188
5
0120081188