0120070079
08-01-2008
Laurie A. Miller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Laurie A. Miller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070079
Hearing No. 220-2006-00007X
Agency No. 4C-440-0215-05
DECISION
Complainant filed an appeal from the agency's final action dated September
15, 2006, finding no discrimination with regard to her complaint. In her
complaint, dated July 6, 2005, complainant alleged discrimination based on
sex (female), age (over 40), disability (workers' compensation injury)
and in reprisal for prior EEO activity when on May 21 and 30, 2005,
she was not given the opportunity to work in the clerk craft.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On
September 11, 2006, the AJ issued a decision without holding a hearing,
finding no discrimination. The agency's final action implemented the
AJ's decision.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged actions. The AJ noted that
at the relevant time, complainant was a City Carrier, at the agency's
Crestline Post Office, Crestline, Ohio. The AJ also noted that the agency
previously made limited job offers to complainant on April 11, 2000, and
June 16, 2003. The June 16, 2003 offer stated that complainant could not
carry a mailbag and had a 20 pounds weight restriction due to neck strain.
Her work consisted of answering the phone, casing mail, delivering express
mail, updating route books and other duties within restrictions. The AJ
indicated that complainant admitted that she was not alleging retaliation
on the basis of any prior EEO activity regarding this complaint since
her Postmaster was not aware of it. Complainant acknowledged that the
job duties of the carrier craft required the ability to lift 70 pounds.
The Postmaster stated that complainant was not denied any opportunity to
work in the clerk craft at the relevant time because no opportunities for
a full-time limited duty city carrier existed. The Postmaster indicated
that on May 21, 2005, staffing was adequate and there was no need for any
assistance. The Postmaster stated, however, that there were opportunities
to clerk on May 28-31, 2005, due to vacation and she asked other employees
based on their availabilities as part-time employees and their desire
to pick up extra hours. The Postmaster also stated that at that time,
she had no idea that complainant desired to work in the clerk craft,
and that complainant's first mention of doing so was on June 9, 2005.
On appeal, complainant does not dispute this.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that she
was denied a reasonable accommodation or that any agency actions were
motivated by discrimination. There was no indication that complainant
had expressed the interest for overtime prior to May 31, 2005, or that the
persons who were given the opportunity had not so expressed that interest.
Furthermore, it appears that complainant would not have been considered
even if she had expressed interest because this work as carrier would have
been outside of her bid assignment in clerk craft and prohibited by the
union agreement as interpreted by the agency. We do not interpret the
union agreement in this decision. We note that complainant argues she
was denied such opportunities to work as a city carrier in June 2005,
and that the agency asserted various reasons for not allowing such work
to be done by complainant. These actions and explanations are not at
issue in this appeal. Complainant has stated she has filed a separate
complaint on the denials of work subsequent to May 30, 2005.
Accordingly, the agency's final action finding no discrimination is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
8/1/08
__________________
Date
2
0120070079
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036