0120070123
06-10-2009
Linda English, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda English,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070123
Hearing No. 410200600217X
Agency No. 1H301005205
DECISION
On October 5, 2006, complainant filed an appeal from the agency's
September 19, 2006 final order concerning her equal employment opportunity
(EEO) complaint. Complainant alleged employment discrimination in
violation of 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(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of the events giving rise to this complaint, complainant was a
light duty employee working on the hand-stamp operation at the agency's
Processing and Distribution Center ((PDC) in Atlanta, Georgia. In a
complaint filed August 15, 2005, complainant alleged that, commencing
June 2, 2005, because of her disability (osteoarthritis in both ankles)
and in retaliation for prior EEO activity, the agency decoded her employee
access badge and denied her direct access to doors to the administrative
section of the PDC. Complainant was under medical restrictions which
limited her walking to no more than fifteen minutes to twenty minutes
at a time. Complainant asserts that the decoding of her badge added
five minutes to the time it took her to walk from the workroom floor
to the administrative offices, which included Human Resources and Labor
Relations. Complainant indicated that she had to go to Labor Relations
to update her medical documentation once a year.
On August 29, 2005, the agency issued a final decision dismissing
the complaint for failure to state a claim. Specifically, the agency
found that the decoding of complainant's access badge did not render her
aggrieved. On appeal, in Linda English v. United States Postal Service,
EEOC Appeal No. 01A60222 (March 6, 2006), the Commission reversed the
agency's final decision and remanded the complaint to the agency for
further processing.
Following an investigation of the complaint, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On July 13, 2006, the
AJ acknowledged the hearing request and sent a notice of a pre-hearing
schedule, with a conference set for September 14, 2006. The notice
provided the parties 90 days for discovery. On August 23, 2006, the
agency moved for summary judgment "on all of complainant's claims of
discrimination." The agency based its motion on the contention that
complainant could not show that she had suffered an adverse action.
The AJ determined that a decision without a hearing was appropriate and
issued a decision in favor of the agency without a hearing, pursuant
to 29 C.F.R. � 1614.109(g). The AJ's decision, issued on day 8 of the
15-day period allotted to complainant to reply to the agency's motion,
adopted the agency's motion in toto.
Specifically, the agency stated that the Distribution Operations Manager
(hereinafter Manager) was checking the access badges to check if all
the employees needed to have access to the administrative offices.
In checking, the Manager determined that complainant, among other
non-supervisory employees, did not need access to the administrative
offices as part of her duties. The Manager noted that complainant no
longer acted as a Union Steward, for which she purportedly would have
needed access to the administrative offices. Consequently, complainant's
badge was decoded. Furthermore, the agency noted that complainant could
mail or fax her medical forms to Labor Relations and did not have to
hand-deliver them. Complainant did not dispute that she did not need
access to the administrative offices as part of her duties, nor does
she dispute that other employees similarly had their access removed.
Complainant testified in her deposition that she preferred to hand-deliver
her medical documentation to make sure it was received.
The agency's final action fully implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant argues that she was not given ample opportunity to
respond to the motion for summary judgment and that there are material
issues in dispute. Specifically, complainant contends that the Manager
did not review employees' access badges until after the Manager was
requested to furnish an affidavit for complainant's prior complaint.
Further, complainant notes that she has not been a Union Steward since
1996 and, therefore, the Manager's reference to her no longer being a
Union Steward is clearly pretextual.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and the agency's, factual conclusions
and legal analysis, including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
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.
Initially, we note that the AJ erred in adopting the agency's motion
in its entirety. When issuing a decision without a hearing, the AJ
must consider the facts in the light most favorable to complainant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The AJ
decision contains no independent assessment of the case. Further, the AJ
acted improperly by not allowing complainant the full fifteen days to
reply to the motion to which she was entitled. We find, however, that
these errors do not warrant remand since this case was properly subject
to summary judgment because there are no material facts in dispute.
It is undisputed that complainant did not need access to the
administrative offices as part of her light duty assignment. Purportedly,
complainant previously needed access to the administrative offices as
part of her duties as a Union Steward; however, she has not acted in that
capacity since 1996. While complainant faults the Manager for noting
the fact that complainant is no longer a Union Steward as one reason for
decoding her badge, given that she has not served in that position for
approximately nine years, it still is an undisputed fact that complainant
is no longer a Union Steward. Further, it is undisputed that the Manager
removed access to the administrative offices from several non-supervisory
employees because she was reviewing the need for such access.
While complainant claims that by denying her badge access, she has to
walk five minutes longer to get to Labor Relations to submit her medical
documentation, there is no evidence of record that this additional time
exceeded her medical restrictions. Furthermore, there is evidence of
record that complainant could have submitted her documentation through
the mail or fax and not had to walk to the administrative offices at all.
Consequently, we find that the agency articulated legitimate,
non-discriminatory reasons for decoding complainant's badge. Complainant
has not shown that these reasons are a pretext for discrimination.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS the
agency's final action finding no discrimination.
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 tends 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
June 10, 2009
Date
2
0120070123
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120070123