01a53830
10-12-2005
Varshaben B. Jhala v. United States Postal Service
01A53830
October 12, 2005
.
Varshaben B. Jhala,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53830
Agency No. 1F-927-0032-03
Hearing No. 340-2004-00030X
DECISION
Complainant filed an appeal from an agency's March 23, 2005 notice
of final action concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
In her complaint, dated March 29, 2003, complainant, a Mail Processing
Clerk at the agency's Santa Ana Processing and Distribution Center (P&DC),
alleged discrimination based on race (Asian, Indian), age (DOB: 7/21/60),
disability, and in reprisal for prior EEO activity when: (1) her schedule
change requests were denied on November 20, 2002, December 7, 2002,
and January 15, 2003; (2) her work hours were changed from 1700 to 1900;
(3) she was sent home due to her light duty status on February 13, 2003;
(4) she was subjected to an investigative interview on March 1, 2003; and
(5) she was issued a seven-day suspension on March 5, 2003. Following the
completion of the investigation of her complaint, complainant requested
a hearing before an EEOC Administrative Judge (AJ). On January 31,
2005, the AJ issued a decision without holding a hearing, 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, 322-23 (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.
Upon review, the Commission finds that the grant of summary judgment was
appropriate, as no genuine dispute of material fact exists. Specifically,
the AJ stated, assuming arguendo that complainant had established a prima
facie case of discrimination, that the agency has articulated legitimate
non-discriminatory reasons for its actions. With regard to the denial of
complainant's schedule change of her starting time (from 1900 to 1700),
described in claim (1), the agency stated that management did not approve
any requests with indeterminate ending dates (as complainant's December 7,
2002 request appeared to be). Management approved the requests that were
assigned to different schedules than complainant, and were for changes
of only a one-half hour change (for two requests) or a one-hour change
(for two requests) to the employees' starting times, in contrast to
complainant's request for a two-hour change of her starting time.
With regard to claim (2), the agency stated that in September 2002, the
processing of Priority Mail by the Santa Ana P&DC, complainant's work
place, was consolidated with Express Mail and this processing was moved
to the Anaheim Processing and Distribution Facility. As a result of
this consolidation, employees, including complainant, who were assigned
to pay location 332 had their jobs abolished and new jobs were made
available to them. The agency notified the employees in writing that
their schedules were going to change due to the arrival of special mail
and the need to have more employees working at the end of the shift in
order to process the mail. Complainant and the other clerks did not like
the new schedule and requested to be returned to their old schedules.
The agency denied all the requests for a permanent schedule change;
only requests for temporary schedule changes were approved, including
complainant's requests. Complainant placed her bid for a permanent
position on October 15, 2002, and based on seniority and preference, she
was awarded a position which had Sunday/Monday off with a starting time
of 7:00 p.m., with one exception, Saturday, the start time was 6:00 p.m.
With regard to claim (3), on February 4, 2003, complainant submitted a
request for a light duty assignment, and the agency gave her temporary
light duty work until there was no more light duty work available.
On February 13, 2003, the agency sent complainant home because it had
no work available for her within her restrictions and because her light
duty form was incomplete. The agency stated that complainant had not
returned a properly completed form returning her to work.
With regard to claims (4) and (5), the agency stated that after
complainant faxed in a copy of her medical restrictions, including a
completed light duty form, requesting that she be returned to work on
February 17, 2003, it created work for her. On February 17, 2003, her
supervisor requested that complainant return to work; he called and left
a message on her answering machine and, also, sent her an express mail
advising her to return to work on February 19, 2003. Complainant did
not return to work on February 19, 2003, but rather returned to work
on February 20, 2003. On March 1, 2003, her supervisor interviewed
complainant regarding why she did not return to work on February 19, 2003.
Initially, complainant stated that she never received the voice mail and
stated that she received the express mail on the morning of February
20, 2003. However, when the agency showed complainant a copy of the
tracking and confirmation sheet that proved she received the express
mail on February 19, 2003, complainant admitted receiving the mail on
February 19, 2003. Consequently, on March 5, 2003, the agency issued
complainant a seven-day suspension for falsification, unacceptable
conduct and AWOL for failing to report to work on February 19, 2003.
The record indicates that through the grievance process, the suspension
was reduced to a discussion.
Based on the foregoing, the AJ determined that the agency articulated
legitimate, non-discriminatory reasons for the alleged incidents. The AJ,
further, determined that complainant failed to show by a preponderance
of the evidence that the agency's articulated reasons were pretextual.
Accordingly, 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 the AJ's issuance of a decision without
a hearing was appropriate and a preponderance of the record evidence
does not establish that discrimination occurred.<1>
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
October 12, 2005
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.