0120071053
03-26-2009
Suzanne J. Nelson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Suzanne J. Nelson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071053
Agency No. 1E-801-0003-06
Hearing No. 541-2006-00103X
DECISION
Complainant filed an appeal with this Commission from the agency's
November 28, 2006 decision implementing the November 14, 2006 decision
of an EEOC Administrative Judge (AJ) who found no discrimination.
Complainant alleges employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. Specifically, complainant, a Mail Processing
Clerk, alleged that the agency discriminated against her on the basis
of disability (on-the-job shoulder injury) when prior and continuing
from October 4, 2005, the agency gave her fewer opportunities to work
overtime than it gave clerks who are junior to complainant in seniority.1
Complainant requested a hearing. Over the objection of complainant,
the AJ issued a decision without a hearing (summary judgment).
The record reveals that because of an injury at work, complainant was
working in a limited duty assigned job and was restricted from working on
the Delivery Bar Code Sorter (DBCS) and could work only on the following
automated machines: Tabbers, Letter Machine Labeling machines and Optical
Character Reader Input Subset System machines.
In his decision finding no discrimination, the AJ found that complainant
failed to establish that her impairment substantially limited any major
life activity, that she had a record of an impairment, or that the agency
regarded her as having an impairment. The AJ noted that complainant
stated that her right shoulder injury affected from her neck to her
fingers and was a permanent condition. The AJ also noted that complainant
stated that her shoulder impairment prevented her from painting rooms in
her house, cleaning her chandeliers, and changing light bulbs and, also,
that complainant could not lift 20 to 25 pounds trays of mail above her
shoulders or below her knees. The AJ concluded that even assuming that
complainant had met the requirements of the Rehabilitation Act, the record
did not support her claim that she worked less overtime than similarly
situated clerks who were junior to her in seniority. The AJ noted the
hours worked by other clerks, identifying the hours worked by them.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate, nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983).
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
We find that the AJ's grant of summary judgment was appropriate because
there exists no genuine issue of material fact. We also find that the
investigative record was adequately developed and that there were no
findings of fact made by weighing conflicting evidence or assessing
witness credibility. Assuming without deciding that complainant
has established a prima facie case of disability discrimination and
that she has a disability, the record establishes that the agency has
articulated a legitimate, nondiscriminatory reasons for its actions.
The record reveals that complainant could not work the same number of
overtime hours as other employees when the overtime call was for the
DBCS machines. Further, if the overtime call was for DBCS machines, the
agency was not allowed to remove employees from other machines over to
DBCS machines so that complainant could work overtime on the machines on
which complainant could work. The record indicates that the collective
bargaining agreement required that overtime work for regular full-time
employees be scheduled among qualified employees doing similar work
in the work location where the employee regularly worked. The record
also reveals that complainant had not worked for 38 days between July 1,
2005 and February 16, 2006, or 25 percent of her available working days,
and these absences reduced her availability to receive more overtime.
Construing the evidence in a light most favorable to complainant,
complainant has not shown by a preponderance of the evidence that the
agency's reasons were pretextual and that the agency was motivated by
discriminatory animus in not awarding complainant overtime. At all
times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
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 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 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
March 26, 2009
__________________
Date
1 The record reveals that complainant initiated EEO Counselor contact on
October 4, 2005, alleging discrimination in overtime prior to October 4,
2005, and continuing. The Report of Investigation reflects that the
investigation into overtime which complainant worked would be limited
to the period from July 1, 2005 through February 14, 2006.
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0120071053
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013