01a55774_r
01-24-2006
Linda Philpott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda Philpott v. United States Postal Service
01A55774
January 24, 2006
.
Linda Philpott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55774
Agency No. 1C-401-0080-04
Hearing No. 240-2005-00133X
DECISION
Complainant filed an appeal from the agency's final action dated August
17, 2005, finding no discrimination with regard to her complaint. In her
complaint, dated November 23, 2004, complainant, a Mail Processing Clerk
at the agency's Louisville KY Processing and Distribution Center, alleged
discrimination based on race/color (White), sex (female), disability
(ankle/leg edema) when: on July 3, 2004, she was required to complete
a PS Form 3971 for clocking in late, and on July 22, 2004, she was
issued a Notice of Removal, dated July 8, 2004, which was subsequently
reduced to a No-Time-Off Letter of Warning Number 3. In the complaint,
complainant also alleged that on July 3, 2004, she was not provided a
union steward. This claim was dismissed for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1), by the agency on December 20,
2004. Following the completion of the investigation of the remaining
claims (i.e., completing Form 3971 and the removal notice), complainant
requested a hearing before an EEOC Administrative Judge (AJ). On August
8, 2005, the AJ issued a decision without holding a hearing, finding
no discrimination and dismissing the union steward claim for failure to
state a claim. The agency's final action implemented the AJ's decision.
With regard to the claim concerning the denial of a union steward, the
Commission finds that this concerns a matter not under EEOC jurisdiction.
The claim concerns whether the collective bargaining agreement is
being correctly implemented and does not result in any harm to a term,
condition, or privilege of employment for which the Commission will
remedy. Thus, the Commission finds that the agency and the AJ properly
dismissed the union steward claim for failure to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1).
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.
Turning to the remaining claims, the Commission finds that the grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. The AJ found that the agency did not discriminate against
complainant. The agency, implementing the AJ's findings, maintains that,
assuming arguendo that complainant had established a prima facie case of
discrimination, it has articulated legitimate non-discriminatory reasons
for its actions. Specifically, complainant's supervisor stated that
complainant was required to fill out a 3971 on the relevant incident date
due to her tardiness. Complainant was .5 units late. The supervisor
indicated that complainant, however, was not charged late on her TACS
clock rings.
With regard to the removal notice, the record indicates that complainant's
original July 8, 2004 removal notice was revised on August 27, 2004.
The record also indicates that complainant filed a grievance and the
removal was resolved to a No-Time-Off Letter of Warning, which was to be
held in the record until February 2006. Complainant's supervisor stated
that she issued complainant the removal notice due to her history of
unscheduled absences as of that time. She indicated that complainant
received progressive discipline for her attendance in the past and that
removal was the next step. Complainant claimed that the absences cited
in the removal notice were eventually covered by FMLA. In response,
the supervisor stated that when the removal notice was initially issued,
the absences cited therein were not covered by FMLA. She indicated
that the removal notice was based on complainant's TAC records at the
time the removal notice was issued. She also indicated that after
the removal notice was issued, complainant applied for FMLA coverage,
which was subsequently approved, retroactively, for some of the absences
cited in the notice. The Acting Manager stated that he concurred with
the supervisor's removal action based upon the record as of July 2, 2004.
In addition, the agency's FMLA Coordinator stated that it was not until
August 8, 2004, when the decision was made to approve complainant's
request for FMLA coverage, including retroactive approval of some later
absences. However, he indicated that other earlier dates cited in the
removal notice, in which complainant requested FMLA coverage, were not
approved because she had insufficient work hours for FMLA eligibility
at that time. The Coordinator stated that complainant's tardiness was
not covered by her type of FMLA coverage.
After a review of the record, the Commission finds that the agency
articulated legitimate, non-discriminatory reasons for the alleged
actions. The Commission also finds that complainant failed to provide
any evidence that the articulated reasons were pretextual or that any
agency action was motivated by discrimination.<1>
The agency's final action is AFFIRMED.
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
January 24, 2006
__________________
Date
1The Commission does not address in this decision whether complainant
is a qualified individual with a disability. There is no claim that
complainant requested and was denied an accommodation.