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