01a11558
05-24-2002
Vickie J. Louthen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Vickie J. Louthen v. United States Postal Service
01A11558
5/24/02
.
Vickie J. Louthen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11558
Agency No. 4G-780-0248-97 et al
Hearing No. 360-98-8575X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is 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 Supervisor in the Business Mail
Entry Section of the agency's San Antonio District Office facility,
filed four formal EEO complaints alleging:
discrimination on the bases of sex (female), national origin
(Anglo-Saxon), disability (depression), and retaliation (prior EEO
activity), when she learned on July 7, 1997, that an illegal search
had been conducted of her desk and file cabinet;
discrimination on the bases of sex, national origin, and reprisal,
when a pay adjustment was made on July 10, 1997, converting 40 hours
of annual leave to sick leave;
discrimination on the bases of sex, national origin, disability (stress),
and reprisal, when she was denied an accommodation on July 30, 1997,
which placed her in an absence status for more than 14 days and she
was not returned to her regular position; and
discrimination on the bases of sex, national origin, and reprisal when
she was moved on January 28, 1998, from an enclosed office space to an
open lobby work area.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination because she failed to establish she was
an �individual with a disability� as defined by the Rehabilitation Act.
In that regard, the AJ found that the only evidence in the record that
complainant submitted revealed complainant had taken some leave from work
due to stress and depression. Upon her return to work, complainant's
physician recommended that complainant not work the night shift.
The AJ found this evidence was not sufficient to establish complainant
had a substantial limitation to a major life activity. Furthermore,
complainant failed to establish she had a record of a disability, or
that the agency regarded her as an individual with a disability.
The AJ did find complainant established sufficient evidence that
would present an inference of retaliation. Specifically, the AJ found
complainant established that the agency officials who were responsible
for the actions alleged were aware of complainant's prior EEO activity,
such that a causal connection could be established.
The AJ then examined whether the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found complainant's
desk, which was shared by other supervisors, was cleaned out during
a housekeeping activity as requested by complainant's supervisor.
Furthermore, the AJ found the record revealed complainant's annual leave
was changed to sick leave partly due to complainant's failure to submit
appropriate leave documentation. As for complainant's claim that she
was moved to another office, the AJ found the evidence revealed other
supervisors outside of complainant's protected classes were also moved
so that the supervisors could keep closer attention on employees.
The AJ noted that complainant alleged that the agency failed to
accommodate her August 1, 1997 request for reassignment to the day shift.
The evidence reveals the agency was initially unable to accommodate
complainant's request on a permanent basis, and complainant went out on
sick leave. However, on September 3, 1997, complainant's request for a
daytime shift was approved.
On November 28, 2000, the agency issued a final order that implemented
the AJ's decision. Complainant makes no new contentions on appeal,
and the agency requests that we affirm its final order.
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 grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Assuming complainant is an individual with a disability,
we agree with the AJ that complainant failed to present sufficient
evidence that would raise a genuine dispute as to whether any of the
agency's actions were taken because of her disability. Furthermore, the
evidence reveals complainant received the accommodation she requested.
As for her claims of disparate treatment based upon her gender, national
origin, and reprisal, we agree with the AJ that construing the evidence
to be most favorable to complainant, complainant failed to present
sufficient evidence that would raise a genuine dispute as to whether
the agency's reasons for its actions were a pretext for discrimination.
Accordingly, the agency's final order is AFFIRMED.
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
5/24/02
Date