01A14992
12-03-2002
Janice O. Goodman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Janice O. Goodman v. United States Postal Service
01A14992
December 3, 2002
.
Janice O. Goodman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14992
Agency No. 4K-200-0005-00
Hearing No. 100-A1-7303
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency order
concerning her complaint of 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.<1> The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission AFFIRMS the agency's final order.
The record reveals that during the relevant time, complainant was
employed as a Letter Carrier, Level 5 at the agency's Friendship Station
in Washington, D.C. Complainant sought EEO counseling and subsequently
filed a formal complaint on March 10, 2000, alleging that she was
discriminated against on the basis of disability (back injury) when:
(1) she was approached by a manager regarding a Department of Labor
overpayment;
she was issued a notice of removal for unacceptable conduct; and
the notice of removal was left out so other employees could view it.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination.
With respect to claims 1 and 3, the AJ concluded that complainant failed
to state a claim because, accepting her allegations as true, she could not
establish in either case that she suffered a present harm or loss with
respect to a term, condition, or privilege of employment as a result of
the agency's action. With respect to claim 2 the AJ found, inter alia,
that complainant had failed to establish a prima facie case of disability
discrimination, noting that complainant had adduced no evidence that a
similarly situated person outside her protected class had been treated
more favorably than she. The agency's final action implemented the
AJ's decision. From that action, complainant brings the instant appeal.
FACTUAL BACKGROUND
In 1998, complainant suffered an injury to her back and was placed on
�temporary, total disability� beginning in December 1998. Complainant
submitted a claim to the Office of Workers' Compensation Programs (OWCP)
of the Department of Labor, seeking compensation for the injury.
OWCP accepted the claim and in February 1999 complainant began
receiving monthly compensation payments of $2,132.48. In March 1999,
complainant returned to work and was paid for that work by the agency.
Thereafter she continued to receive payments from OWCP which ultimately
totaled $10,662.40. In November 1999, complainant was issued a Notice
of Removal which charged her with improperly receiving payments from
OWCP after she had returned to work.
FINDINGS AND ANALYSIS
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.
Claim 1 (Approached by Manager)
Complainant contends that she was discriminated against on the basis
of her disability<2> when she was approached by a manager to discuss
her having received OWCP payments while she was working for and being
paid by the agency. This allegation does not state a separate claim
for relief. The Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action are not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of the federal EEO statutes. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No. 05940695 (February 9, 1995).
In addition, complainant was ultimately removed for having received
OWCP payments. The manager's approaching her to discuss the situation
was a preliminary step in the removal process and any claim she may have
had as a result of the manager's initial approach to her has now merged
with the removal itself. See Siegel v. Department of Veterans Affairs,
EEOC Request No. 05960568 (October 10, 1997); Charles v. Department of
the Treasury, EEOC Request No. 05910190 (February 25, 1991). (proposed
action merges with finalized action). This claim was correctly dismissed
for failure to state a claim.
Claim 2 (Removal)
Complainant contends that she was subjected to disparate treatment
discrimination on the basis of her disability when she was removed.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Here complainant has adduced no evidence whatever that would give
rise to an inference of discrimination. This may be done by showing
that a similarly situated employee outside her protected class, i.e.,
a person who is not disabled, had been treated less harshly than she.
Complainant has failed to making any such showing. One person she
identifies as similarly situated is also disabled and therefore is
not outside complainant's protected class. That person's having been
treated more favorably than complainant would not support an inference
that the agency discriminated against complainant because of her
disability. Indeed, it would tend to support the conclusion that the
agency does not discriminate on the basis of disability.
Complainant also suggests that the agency's failure to remove certain
unnamed managers who were found to have misused agency motor vehicles
is evidence of discriminatory animus. We disagree. In order for two
or more employees to be considered similarly situated for the purpose
of creating an inference of disparate treatment, complainant must show
that all of the relevant aspects of her employment situation are nearly
identical to those of the other employees who she alleges were treated
differently. Sessom v. United States Postal Service, EEOC Request
No. 05940976 (February 1, 1996); Smith v. Monsanto Chemical Co., 770
F.2d 719, 723 (8th Cir. 1985). The managers complainant proposes as
comparators are not similarly situated. The nature of their positions
as managers and their alleged violations are too dissimilar to those of
complainant to permit any inference of discriminatory animus to be drawn
from their having received more favorable treatment than complainant at
the hands of the agency.
Claim 3 (Notice of Removal Publicly Displayed)
Complainant alleges that after the Notice of Removal was prepared, a
supervisor left it in a public area where other employees could see it.
Complainant does not explain how this act injured her in a sufficiently
concrete way to cause a right of action under the Rehabilitation Act..
See Backo and Henry, supra. Indeed, she does not allege that anyone
actually read the Notice of Removal during the period that it was on
public display. We find that the AJ correctly dismissed this claim for
failure to state a claim.
CONCLUSION
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final order.
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 (S0900)
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 (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
December 3, 2002
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2We assume for purposes of this decision that complainant is a qualified
individual with a disability and, as such, is entitled to the protections
of the Rehabilitation Act.