01a52758
05-04-2006
Valerie J. Lewis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Valerie J. Lewis v. United States Postal Service
01A52758
May 4, 2006
.
Valerie J. Lewis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52758
Agency No. 1F-851-0012-03
Hearing No. 350-2004-00073X
DECISION
Complainant filed an appeal from the agency's final action dated
February 3, 2005, finding no discrimination with regard to her complaint.
In her complaint, complainant, a Casual Clerk at the agency's Phoenix
Priority Mail Postal Processing Center, alleged discrimination based
on her race (African-American) and age when on April 2, 2003, she was
terminated from her casual position. The record indicates that at the
conclusion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). During the pendency of the hearing,
complainant amended her complaint to include a claim that management
failed to provide a reasonable accommodation for her disability (diabetes)
during her employment at the agency from January 28 through April 2, 2003.
On September 8, 2004, the AJ issued a summary judgment determination on
the disability discrimination claim finding no denial of an accommodation.
During the hearing, only the claims of race and age discrimination were
addressed and on December 20, 2004, the AJ issued a decision finding no
discrimination on those bases. On February 3, 2005, the agency issued
its decision implementing the AJ's decision.
Reasonable Accommodation:
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.
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate with regard to the issue of reasonable
accommodation as no genuine dispute of material fact exists. The AJ
stated that although complainant claimed that she was not permitted to eat
at regular intervals, she, however, did not produce any evidence that this
accommodation was denied. The AJ indicated that the agency, undisputed
by complainant, asserted that complainant, like other employees, was
provided with 15 minutes breaks every two hours and a lunch break.
The AJ found that complainant did not present any evidence that she was
denied an accommodation, i.e., that she was prevented from eating at
regular intervals, or was ever disciplined or received any adverse action
when she attempted to eat at regular intervals. Complainant claimed
that she requested a change in her lunch hour from her supervisor and
he gave her verbal approval but never officially changed her schedule.
Based on the foregoing, the AJ found and we agree that complainant failed
to establish that she was denied a reasonable accommodation.<1>
Race and Age Discrimination:
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Based on the hearing testimonies and evidence in the record, the AJ
stated, assuming arguendo that complainant established a prima facie case
of race and age discrimination, the agency articulated a legitimate,
nondiscriminatory reason for complainant's termination. Specifically,
complainant's supervisor stated that he terminated complainant for
her unsatisfactory attendance. He indicated that complainant had
five unscheduled absences in less than two months of employment.
Complainant missed three days of work (24 hours) from February 5-7,
2003; on February 10, 2003, complainant requested 5.17 hours of Leave
Without Pay (LWOP); on February 13, 2003, she called into work to report
that she would be late due to weather conditions; on February 27, 2003,
she was late; and on April 1, 2003, she called in sick.
The supervisor also stated that prior to the termination, he warned
complainant on two occasions, on February 12 and March 3, 2003, that her
attendance was a problem and that if she did not correct the problem,
she would be terminated. Complainant failed to correct her attendance
problem and after her fifth unscheduled absence in less than two months
from February 5 to April 1, 2003, she was terminated. The AJ determined
that complainant failed to show by a preponderance of the evidence that
the agency's proffered reasons were pretextual.
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 because 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
May 4, 2006
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Commission does not address in this decision whether complainant
is a qualified individual with a disability.