Karen S. LeClair, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.

Equal Employment Opportunity CommissionMar 17, 2003
01A13012 (E.E.O.C. Mar. 17, 2003)

01A13012

03-17-2003

Karen S. LeClair, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.


Karen S. LeClair v. United States Postal Service

01A13012

March 17, 2003

.

Karen S. LeClair,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Northeast Area),

Agency.

Appeal No. 01A13012

Agency No. 1B-021-0078-99

Hearing No. 160-A0-8630X

DECISION

Complainant timely initiated an appeal from the agency's final decision

(FAD) concerning her equal employment opportunity (EEO) complaint of

unlawful employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,

and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to

29 C.F.R. � 1614.405. Complainant alleges she was discriminated against

on the bases of her sex (female), disability (repetitive muscle strain,

Post Traumatic Stress Disorder), and reprisal for prior EEO activity

when she was issued a Notice of Removal for failure to be regular in

attendance, terminating her employment, effective July 17, 1999.

The record reveals that complainant, a Mail Processor at the agency's

General Mail Facility, in Boston, Massachusetts, filed a formal EEO

complaint with the agency on November 4, 1999, alleging that the agency

had discriminated against her as referenced above. At the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

The AJ issued a decision without a hearing, finding no genuine issues

of material fact in dispute and no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of sex discrimination. Specifically, the AJ found that complainant failed

to demonstrate that similarly situated employees not in her protected

classes were treated differently when they failed to be regular in

attendance. The AJ also concluded that complainant failed to establish a

prima facie case of disability discrimination, finding that complainant

failed to demonstrate that she has an impairment substantially limiting

one or more major life activities. The AJ also found that complainant

failed to establish a prima facie case of reprisal discrimination,

finding that complainant submitted no persuasive evidence that she was

involved in prior EEO activity. The AJ further noted, that the agency

articulated legitimate, nondiscriminatory reasons for its actions, and

that complainant did not establish that these reasons were pretexts to

mask unlawful discrimination. The agency's final decision implemented

the AJ's decision.

On appeal, complainant, through her attorney, contends that the AJ erred

when he issued a decision without a hearing, because genuine issues of

material fact are dispute. Specifically, complainant contends that

the matter of whether she has an impairment substantially limiting

one or more major life activities, is a genuine issue of material

fact in dispute. The Commission's regulations allow an AJ to issue

a decision without a hearing when he finds that there is no genuine

issue of material fact. 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 does not

sit as a fact finder. Id. 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. A disputed 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, a decision without a hearing is not appropriate.

In the context of the Rehabilitation Act, an AJ may properly consider

issuing a decision without a hearing only upon a determination that the

record has been adequately developed.

After a careful review of the record, the Commission concludes that the

issuance of a decision without a hearing was appropriate, as no genuine

dispute of material fact exists. In reaching this conclusion, we find

that complainant does not dispute that she failed to be in regular

attendance. We also find that even assuming arguendo complainant is

an individual with a disability pursuant to the Rehabilitation Act, she

has failed to present sufficient evidence from which a reasonable fact

finder could infer unlawful animus on the part of the agency. Therefore,

after a careful review of the record, including complainant's contentions

on appeal, and arguments and evidence not specifically addressed in this

decision, we affirm the agency's final decision.

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

March 17, 2003

__________________

Date