0120092581
10-26-2009
Kimberly S. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kimberly S. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092581
Agency No. 4G-700-0014-08
Hearing No. 461-2008-00119X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 6, 2009 final action concerning an equal
employment opportunity (EEO) complaint claiming 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.
On January 26, 2008, complainant filed the instant formal complaint.
Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of disability (fibromyalgia,
chronic fatigue, traumatic stress disorder, carpal tunnel syndrome)
and in reprisal for prior EEO activity when:
(1) on or about August 2007, she has been subjected to a hostile work
environment and harassment with regard to her on-the-job injury,
being placed in an off duty/no pay status, required to provide medical
documentation, issued discipline, her conduct and statement recorded;
and co-workers allowed to laugh and make negative comments about her;
(2) on February 16, 2008, she drove her agency vehicle in a ditch and
her supervisor had to come out to her route, she was not allowed to
retrieve her personal belongings, and she was placed off the clock; and
(3) on February 20, 2008, she had been cut out of overtime.1
Following the investigation into her formal complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On May 1,
2009, the AJ issued a decision by summary judgment in favor of the agency.
The agency fully implemented the AJ's decision in its final action.
The AJ found that complainant did not show by a preponderance of the
evidence that she was discriminated against on the bases of disability
and reprisal.2 The AJ further found that complainant did not prove she
was subjected to harassment sufficiently severe or pervasive so as to
render her work environment hostile.
The AJ noted that in regard to claim (1), the record indicates that
on August 10, 2007, complainant called work and requested five days
of sick leave due to suffering from heat exhaustion while working
on August 8, 2007. The record indicates that complainant worked on
August 8 and 9, 2007. The record further reflects that on August 18,
2007, complainant filed an Office of Workers' Compensation Programs
(OWCP) Form CA-I requesting compensation benefits as a result of the
heat exhaustion she suffered on August 8, 2007. The AJ noted that the
agency's Office of Inspector General investigated complainant's OWCP
claim for fraud and as a result, the agency successfully challenged the
OWCP claim. Specifically, the AJ noted that according to the Postmaster
(PM), management challenged complainant's OWCP claim "due to the fact
she did not mention any problems on the [August] eighth she worked a
full day on the [August] ninth and did not mention any problems and
called in on [August] tenth. She did not seek medical attention until
[August tenth]."
Further, the AJ noted that according to PM, she placed complainant
on an off duty/no pay status when she reported to work on August 29,
2007 and "appeared to be under the influence." Specifically, PM stated
that when complainant reported to duty she "was slurring her speech,
stumbling, falling and unable to perform her duties." PM stated that
after complainant clocked out on sick leave and "proceeded to go home.
When she drove out of the employee parking lot "she rear ended a police
vehicle stopped at the light in front of the Post Office. When I
questioned the police officer he stated that [complainant] claimed she
was on prescription medication and did not feel well and was going home."
PM stated, however, complainant told her that she had low blood sugar
diabetes and "that had caused her [e]rratic behavior." PM stated
"considering the severity and safety issues of her appearing to be under
the influence I required more medical documentation stating she was able
to perform all her duties including driving a postal vehicle."
The AJ noted that on September 6, 2007, complainant returned to work
after providing medical documentation indicating that she was able to
perform her full duties and management provided partial compensation
for the days in which she was in non-duty status. The AJ noted that PM
issued complainant a Letter of Warning on September 13, 2007 ,for improper
conduct when she reported to work on August 29, 2007, in an impaired state
and physically unable to perform her duties. The record reflects that on
September 18, 2007, complainant was walking on the dock when she tripped
over an electrical cord, scraping her head and bruising her knee. The AJ
noted that on October 2, 2007, the Supervisor Customer Services (SCS)
issued complainant a Letter of Warning for unsatisfactory performance,
unsafe act, and failure to report an accident when she suffered heat
exhaustion and failed to report it and by having an avoidable accident
when she tripped over the electrical cord and injured herself.
With respect to complainant's allegation that her conduct and
statements were recorded, PM stated that she "keeps personal notes on
all employees - it is documentation kept on a daily basis. It is part
of my job requirement to keep notes and documentation on all employees."
Regarding complainant's allegation that her co-workers were allowed to
laugh and make negative comments about her, PM stated that complainant
"encourages confrontations on the workroom floor on a daily basis.
She harasses the other carriers and when they say things back to her
she claims they are harassing her."
Regarding claim (2), the AJ noted that the record reflects that on
February 16, 2008, complainant was still delivering mail for the day when
a witness observed complainant driving her agency vehicle erratically
and eventually driving the vehicle off the road into a ditch. The AJ
further noted that the witness offered complainant assistance but that
complainant declined. The AJ noted that according to PM, the witness
stopped another carrier "who called me. When I arrived out on the street
[complainant] was acting as if she was under the influence of something.
She made several statements that she wasn't 'drunk' and everything she
was taking she had 'prescriptions' for." PM stated that she instructed
complainant "to get into my vehicle with me and another carrier for
transport back to the Post Office. She refused and said she would be able
to get back on her own. I told her that if she did not return with me I
would have to call the police and have her escorted back. She told me
to call the police and provided two phone numbers to call the police."
The record reflects that a police officer escorted complainant to the
police station.
The AJ noted that on February 19, 2008, complainant's next schedule
work day, she called in sick for the remainder of the week. The AJ
noted that upon complainant's return to work on February 25, 2008, PM
placed complainant in emergency off-duty status until she could provide
medical documentation that she could perform all of her duties safely.
The AJ noted that the record reflects that on March 1, 2008, complainant
called the Post Office asking to retrieve her personal belongings from
an agency vehicle but a temporary supervisor, who knew that complainant
was in an emergency placement, advised complainant to contact the regular
management on the following Monday, regarding her request.
Regarding claim (3), the AJ noted that during the relevant time,
complainant was on the overtime desired list and was available for
overtime. The AJ noted that according to the collective bargaining
agreement, overtime should be assigned to carriers on an equitable
basis each quarter, but a carrier is only available for the equitable
distribution of overtime if the carrier works overtime on his/her own
route on a regularly scheduled work day; and that an employee is not
available for overtime on days the employee is on leave. The AJ noted
that from February 2008 to April 2008, complainant was on extended leave.
The AJ further noted that the record reflects that the Postal Service
was directed to reduce overtime usage by 54 percent, so no overtime was
assigned to a carrier on the carriers' day off. The AJ concluded that
during the period at issue, a typical carrier's average overtime at
the agency was 5.9 percent of all the hours the carrier worked while
complainant's overtime amounted to 12.1 percent of all the hours she
worked.
PM stated that complainant "was not cut out of overtime; from February
20, 2008 to the present, she was out on sick leave for over two months.
[Complainant] was on the Overtime Desired List for the first and second
Quarters 2008." Finally, the AJ concluded that complainant did not prove,
by a preponderance of the evidence, that the agency's proffered reasons
for its action were a pretext for discrimination.
On appeal, complainant, through her attorney, argues that summary judgment
was inappropriate in this case, and that the incidents she identified were
sufficient to prove that she was subjected to discriminatory harassment
by agency management officials.
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
October 26, 2009
__________________
Date
1 The record reflects that claims (2) - (3) were later amended to the
instant formal complaint.
2 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.
??
??
??
??
2
0120092581
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092581
7
0120092581