01a51021
04-26-2005
Linda S. Leary, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda S. Leary v. United States Postal Service
01A51021 & 01A50928
April 26, 2005
.
Linda S. Leary,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A51021 & 01A50928<1>
Agency Nos. 1B-033-0012-02 &1B-031-0011-02
Hearing No. 160-2003-08458X
DECISION
Complainant timely initiated two appeals from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful 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 appeals are accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a former Mailhandler at the agency's
Manchester, New Hampshire facility, alleged in her complaints that the
agency discriminated against her on the bases of disability (impairment:
tendinitis of the elbow) and in reprisal for past acts when (1) in a
letter dated October 30, 2001, management informed her that she was
disqualified from employment at the Nashua, Priority Mail Processing
Center (PMPC),<2> and (2) management denied her reappointment as a
casual employee.
At the conclusion of the investigation, complainant received copies
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ consolidated complainant's complaints,
and upon the agency's motion and after considering complainant's response,
the AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie cases
of both disability discrimination and retaliation. Specifically, the AJ
reasoned that even assuming complainant was disabled, as understood under
the Rehabilitation Act, she failed to provide evidence on which to infer
discrimination based on her disability. In this regard, the AJ notes that
complainant did not show that similarly situated employees outside of her
protected classes were treated differently under similar circumstances.
With regard to the retaliation claims, the AJ determined that complainant
had not engaged in any EEO protected activity before she filed the
January 22, 2002 complaint alleging unlawful disqualification from the
Nashua position. As for the retaliation claim of her second complaint
(the reappointment denial), the AJ concluded that complainant had
not demonstrated that the decision-makers involved in the denial had
knowledge of the earlier complaint regarding the disqualification.
The AJ emphasized the fact that complainant claimed retaliation not for
prior EEO activity, but rather for having filed a workers compensation
claim based on her tendinitis, and because her husband had also filed a
workers compensation claim for tendinitis approximately two weeks after
she filed hers. According to the AJ, these bases of retaliation are
not protected under EEOC law. Nevertheless, the AJ reasoned that even
if the retaliation complainant alleges is based on protected activity,
she still failed to prove that the agency's reasons for its actions were
a pretext for discrimination. The agency's final order implemented the
AJ's decision.
On appeal, complainant does not specifically dispute the AJ's findings.
Complainant takes issue with the supervisors' claims on the record
that complainant was a poor worker. Complainant points to past
evaluations where she received good performance reviews and suggests
the implausibility that temporary workers could score higher in their
performance reviews than she, a nine year casual employee of the agency.
Complainant also argues that the agency was wrong in calculating her
absenteeism. She maintains that in disqualifying her from employment
at the Nashua PMPC and denying her reappointment as a casual employee,
management improperly used against her the days she was off due to her
tendinitis as well as another day which she states was an off-day rather
than a sick-day. Complainant further introduces a physician's statements
regarding her tendinitis condition as well as other documentation as
proof that management perjured themselves when they provided statements to
the EEO investigator about the matter. In response, the agency restates
the position it took and requests that we affirm its final order.
Subsequent to her appeal filing, on December 8, 2004, complainant
submitted to the Commission a document entitled �New Evidence in
Appeal,� in which she claims to provide additional proof that the agency
discriminated against her. Attached to the brief, complainant submits
a copy of a grievance decision involving another postal employee at
her facility. Complainant indicates that the grievant in that matter, a
mailhandler like her, had been denied transfer to Nashua PMPC based on his
attendance record � the same reason the agency disqualified complainant
from a position at Nashua. In that case, the arbitrator sustained the
grievance, finding that the agency had not shown that the Union and
the agency had incorporated any attendance criteria into the agreements
signed by the parties. See In re Tinsley, USPS Case No. 02022059, at 7
(Feb. 25, 2003), attached as Exhibit 1 to Complainant's New Evidence
in Appeal. Complainant also argues that many casual employees who got
jobs at Nashua PMPC had more than four unscheduled absences in a year
(the supposed criteria that had disqualified her from the position).
In support of this argument, complainant submits copies of the attendance
records of these employees.<3>
The Commission cannot consider this additional evidence in making our
final decision on the matter. The Commission has concluded, and Congress
has approved, that �no new evidence will be considered on appeal unless
the evidence was not reasonably available during the hearing process.�
Federal Sector Equal Employment Opportunity, 64 Fed. Reg. 37,654 (July
12, 1999). Complainant could have and should have presented both the
grievance decision and the absentee records of the other employees earlier
in the process before the AJ issued her decision without a hearing.
We further find that none of the information that complainant submitted
as new evidence was in fact �new� because, especially considering the
date of these documents, it has not been shown that the information was
not reasonably available to complainant during the hearing. Therefore, the
Commission shall decide this matter without regard to any of complainant's
�new evidence.�
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. See 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, the issuance of
a decision without a hearing is not appropriate. Similarly, an AJ may
not issue a decision without a hearing if he or she actually has to find
facts first to do so.
We find that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Assuming
without concluding that complainant's tendinitis in her elbow rendered
her disabled, she failed to provide any other evidence that raises the
inference that she was disqualified from employment at Nashua and was
denied reappointment as a casual employee because of her disability.
In her appeal, complainant attempts to downplay any attendance problems
and insists that any attendance issues that may exist were related to the
time she went off work due to her disability, starting around August 29,
2001. Notwithstanding her attempts and her statement that she �never
missed any days except when on tendinitis,� the record establishes
that complainant had at least four unscheduled absences before August
29, 2001. Appeal at 5.<4> The fact of the matter is that at the time
of the disqualification from employment, the Nashua PMPC facility had
in place an attendance criteria that it used to evaluate employees it
contemplated hiring to work at the facility. The criteria was that an
employee could not have a record of four or more unscheduled absences in a
one year period. Complainant has not shown that this method of selecting
employees was motivated by unlawful discrimination. The evidence on the
record is insufficient to allow us to draw an inference of discrimination.
Moreover, the AJ took note that complainant did not provide evidence
of similarly situated, non-disabled employees, working under similar
circumstances and with similar work records who had been reappointed as
casuals and hired to work at Nashua. Of course, providing comparative
evidence is not the only way to establish a prima facie case.
As explained above, our review of the record shows that complainant
provided nothing more to support her claims. Therefore, our review of
the record indicates a decision without a hearing in favor of the agency
was proper. Complainant had not met her burden of providing sufficient
evidence to raise a prima facie case of disability discrimination.
With regard to her retaliation claims, we again agree with the
AJ's analysis. It is black letter EEOC law that a retaliation claim
must be based on the complainant's opposition to discrimination or
participation in covered proceedings. See EEOC Compliance Manual,
Section 8: Retaliation. 915.003, at 8-3 (May 20, 1998). Again, a
review of the record does not indicate that complainant had engaged in
any prior �opposition� to discrimination. We believe the AJ correctly
summed up complainant's retaliation claims as being based on the belief
that the agency wanted to punish her because of her OWCP absences and
because she and her husband developed tendinitis on the job. These are
not �opposition� activities which would properly lay ground for a
retaliation claim. Furthermore, we agree with the AJ that complainant
has not provided evidence to indicate that the supervisors who decided
not to reappoint her had any knowledge that she had filed a complaint
alleging improper disqualification.
Therefore, after further construing the evidence to be most favorable
to complainant, we conclude that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's protected class. As such we affirm the agency's
final order.
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:
April 26, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Two appeals were docketed because although the Administrative Judge
who issued the decision below consolidated the claims, complainant
filed two separate appeals.
2 The Commission notes that the Counselor's Report states that
complainant alleged discrimination on the basis of her age (D.O.B. July
5, 1955) in addition to disability. However, nothing more exists on
the record concerning this basis of discrimination, and complainant has
not raised it in her pleadings.
3 We note that complainant is represented in this matter by her
husband. In both her Appeal and the �New Evidence in Appeal� document,
complainant's representative raises other employment discrimination claims
pertaining to him personally. The Commission informs complainant's
representative that we cannot take any action on his claims, and his
allegations have not influenced our final decision on complainant's
claims. If he wishes to pursue a claim against the agency on his
own behalf, he must initiate contact and raise the matter with an EEO
Counselor.
4 Complainant only really disputes the fact that August 23, 2001 was
counted as an unscheduled leave day, when she claims it was her day off.
Complainant also appears to argue that May 18, 2001 was also a day off
and was improperly counted as LWOP; however, she does not specifically
argue this in her brief as she does the August 23rd date. She merely
notes it on Exhibit 5 to her Appeal. She does not take issue with the
other four days that were marked as LWOP days, namely, April 2, May 12,
May 14 and June 23, 2001.