01a41114
04-21-2005
Lynda G. Hozempa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lynda G. Hozempa v. United States Postal Service
01A41114
April 21, 2005
.
Lynda G. Hozempa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41114
Agency No. 1B-012-0049-02
Hearing No. 160-A3-8283X
DECISION
The record indicates that complainant filed an appeal from the agency's
final action dated November 4, 2003, finding no discrimination with
regard to her complaint. In her complaint, dated September 18, 2002,
complainant, a Bulk Mail Dock Clerk, alleged discrimination based on sex
(female) and disability when since July 26, 2002, and continuing, she
was denied reasonable accommodation and assigned work without assistance.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a decision
without a hearing, by incorporating the agency's motion for such,
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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.
Upon review, the Commission finds that the AJ properly issued a
decision without a hearing. In her decision, the AJ, incorporating
the agency's motion, determined that complainant failed to establish a
prima facie case of sex discrimination. Specifically, the AJ noted that
complainant presented only generalized claims and failed to identify
similarly situated individuals outside her protected group (female)
who were treated more favorably than she. The agency indicated that
complainant did not furnish the EEO investigator with her affidavit,
and just stated in her formal complaint that �male dock clerks work the
far east and they get help.�
With regard to disability claim, the agency stated that, assuming arguendo
that complainant had established a prima facie case of discrimination, it
articulated legitimate, nondiscriminatory reasons for the alleged actions.
Specifically, complainant's supervisor stated that at the time of the
alleged incident, he told complainant that she may have to work alone.
Complainant, in turn, told him that her feet were bothering her and
that she would need some help. The supervisor immediately informed
complainant's manager about that and the manager went to talk to her
personally. When the manager asked complainant if she needed assistance
due to what she reported to the supervisor, she said that she could manage
and that if she could not manage she would let him know. The manager
stated that the conversation was amicable and cooperative and he did
not hear from either complainant or the supervisor thereafter about
the situation. Management noted that complainant did not provide them
with any medical documentation indicating that she had any restrictions.
Complainant does not dispute the agency's arguments. Upon review,
the Commission finds that complainant has failed to show that she was
denied any accommodation requested or desired by complainant.<1>
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the agency's final action is hereby
AFFIRMED and a preponderance of the record evidence does not establish
that discrimination occurred.
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
April 21, 2005
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.