0120091927
09-03-2009
Kathryn L. Carter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathryn L. Carter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091927
Agency No. 1G-754-0073-08
Hearing No. 450-2008-00366X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 27, 2009 final action concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against her on the basis of disability (right neck and arm and rotator cuff) when:
on February 29, 2008, she was issued a Notice of Removal effective April 4, 2008.
The record reflects that on February 27, 1988, complainant began her employment with the agency as a Mail Processing Clerk, PS-5, at its North Texas Processing and Distribution Center in Coppell, Texas. The record further reflects that after complainant sustained an on-the-job injury on February 27, 1996, she was offered a limited duty job assignment at the security desk in which her duties involved answering incoming calls and monitoring the front gate.
Following the investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 11, 2009, the AJ issued a decision by summary judgment in favor of the agency. On February 27, 2009, the agency fully implemented the AJ's decision in its final action.
The AJ found that although complainant has a disability within the meaning of the Rehabilitation Act, she was provided with a reasonable accommodation. The AJ further found that complainant did not establish a prima facie case of disability discrimination, in that she failed to show that she was treated differently from similarly situated individuals not in her protected class.1 The AJ found that the agency nevertheless articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
The Supervisor Distribution Operations (SDO) stated that on February 29, 2008, she was the deciding official to issue complainant a Notice of Removal for Unsatisfactory Attendance/Continued Failure to be Regular in Attendance; and that she was removed from the agency effective April 4, 2008. SDO stated that from November 10, 2007 to February 14, 2008, complainant "continued to miss work without proper documentation to protect her absences - I made her aware several times that she was looking at a removal if she continued to miss." SDO stated that during the relevant time, complainant had progressive discipline for her unsatisfying attendance and that she "was aware of the consequence." SDO stated that on December 5, 2007 and February 14, 2008, she conducted interviews with complainant. SDO stated that during the interviews, complainant stated that her absences were due to her husband and son's illness as well as other health issues "which are not job-related."
SDO stated that complainant was in violation of Section 665.41 of the Employee and Labor Relations Manual. The record reflects that Section 665.41 "Requirement of Regular Attendance" states "employees are required to be regular in attendance. Failure to be regular in attendance may result in disciplinary action, including removal from the Postal Service." Furthermore, SDO stated that she did not discriminate against complainant based on her disability.
Complainant's supervisor (S1) stated that she was complainant's supervisor on and off over ten years. S1 stated that during the relevant time, she held numerous discussions with complainant concerning her attendance issues. S1 stated that although complainant was given opportunities to correct her attendance deficiencies, she failed to do so and continued to be absent from her official duties. S1 stated that complainant had previously received an official discussion, Letter of Warning, 7-Day Suspension, 14-Day Suspension for her failure to be regular in attendance. S1 stated that the progressive discipline process allows an employee time to correct their unsatisfactory attendance and serves as a pre-warning that discipline could progressively reach the removal stage. S1 stated that complainant "stated during our conversations she was not concerned, that management could pursue whatever [was] necessary and that she would deal with it at that time. It was not until she received the Removal Letter she showed signs of concern."
The Manager, Distribution Operations (MDO) stated that he was the concurring official concerning complainant's removal from agency employment. MDO stated that complainant's removal was based on her "poor" attendance. MDO further stated "management went through the proper procedures, Letter of Warning, 7-Day Suspension, 14-Day Suspension, etc."
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, 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 unlawful discrimination occurred.
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
September 3, 2009
__________________
Date
1 For purposes of analysis only, and without so finding, the Commission presumes that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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