01A03786
08-06-2002
Judy E. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judy E. Walker v. United States Postal Service
01A03786
08-06-02
.
Judy E. Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03786
Agency Nos. HO-0131-98, HO-0023-99, HO-0055-99
Hearing No. 100-99-7368X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency order
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. 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.
ISSUE PRESENTED
The first issue presented is whether the Administrative Judge properly
issued a decision on summary judgement on two issues in which he found
that complainant had not been discriminated against on the bases of
race, sex, disability and retaliation when she was denied staffing
requests and constructively discharged. The second issue presented is
whether the Administrative Judge properly issued a decision finding no
discrimination by the agency based on her disability and retaliation
when she was denied an award.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Manager, Business Customer Relations at the agency's Mid-Atlantic
Area facility. Complainant sought EEO counseling and subsequently filed
formal complaints on September 14, 1998, January 22, 1999, and March 19,
1999, alleging that she was discriminated against on the bases of race
(African-American), sex (female), disability (depression, anxiety,
Post Traumatic Stress Disorder), and reprisal for prior EEO activity when:
(1) complainant's selections to fill vacant positions and her requests
for staffing support through details were not approved;
the agency constructively discharged her; and
she did not receive an Economic Value Added (EVA) award, on December
9, 1998.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ denied a hearing for issues 1 and 2
asserting that there were no genuine issues of material fact in dispute
and ordered a hearing concerning issue 3. On Friday, February 18, 2000,
the AJ conducted a hearing concerning issue 3. On March 6, 2000, the
AJ issued a Bench Ruling finding that summary judgment for the agency
was appropriate with respect to issues 1 and 2. The AJ's Bench Ruling
also made a finding of no discrimination regarding issue 3.
In regard to issue 1, the AJ concluded that complainant failed to
establish a prima facie case of disparate treatment on the bases of race,
sex, and in retaliation for prior EEO activity, noting that
the complainant offered no evidence that the agency did not approve her
selections or staffing support requests and that the complainant failed
to identify the prior EEO activity that gave rise to the adverse action.
With respect to issue 2, the AJ found that complainant did not produce
any evidence supporting her claim of constructive discharge because the
complainant provided no evidence that a reasonable person would have
thought her working conditions were intolerable, that she was subjected
to a discriminatory act, that the agency was aware of her disability,
nor evidence that her retirement resulted from the complainant's working
conditions. Therefore, the AJ concluded the complainant did not establish
a prima facie case on the bases of race, sex, disability or retaliation.
After a hearing concerning issue 3, the AJ determined that because
complainant presented insufficient evidence that she had a specific
physical or mental impairment which substantially limited one or more
major life activities as defined by the Rehabilitation Act, complainant
failed to establish a prima facie case of disability discrimination.
The AJ did conclude that the complainant established a prima facie case
of discrimination based on retaliation.
The AJ then found that the agency proffered legitimate, nondiscriminatory
reasons for denying the complainant an EVA award, namely, that her
absenteeism resulted in her failure to make a contribution to the
organization. In reaching this conclusion, the AJ noted that the
recommendation not to provide the complainant an EVA award was accepted
by the Executive Compensation Committee and that the complainant failed
to produce evidence that she was not absent for a period of eight months
preceding the award and thus, provided no evidence of her contribution
to the organization during that time period.
The AJ then concluded that complainant failed to demonstrate by a
preponderance of the evidence that she was discriminated against under
any of her alleged bases. In reaching this conclusion, the AJ found that
the complainant failed to produce any evidence that the agency's actions
regarding the denial of the EVA award were motivated by discrimination
or retaliation.
The agency's final action, dated March 24, 2000, implemented the AJ's
decision.
Complainant raises similar arguments on appeal to those she raised before
the agency.
The agency stands on the record and requests that we affirm its final
action implementing the AJ's decision.
ANALYSIS AND FINDINGS
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, we find that the AJ correctly
concluded that there was no genuine issue of material fact in this
case.<1> Assuming arguendo that the complainant could prove that the
Management Officials knew of her prior EEO activity, the Commission agrees
with the AJ that complainant failed to establish a prima facie case with
regard to the disapproval of her support staff and that the agency did
not approve her selections. The complainant has provided no support for
her contention that either by not getting the staff she wanted, or by not
receiving enough support staff she was harmed by the agency's actions.
Furthermore, the Commission agrees with the AJ that the complainant
offered no evidence that similarly situated individuals were treated
more favorably. Therefore, concerning whether the complainant was
discriminated or retaliated against for prior EEO activity, no genuine
issue of material fact that could affect the outcome of the case exists
with respect to issue 1.
With respect to issue 2, the Commission agrees with the AJ that the
complainant provided no evidence to support her claim that a reasonable
person would have found her working conditions to be intolerable.
The complainant asserts that one factor that made her working conditions
intolerable was the fact that a medical officer from the agency called
her psychiatrist to find out if the complainant was retiring soon. While a
call to an employee's doctor may seem out of the ordinary, in the instant
case, the complainant had missed work for portions of December 1997 and
February 1998, and had not been to work in April 1998, when an agency
nurse called the psychiatrist in early May 1998. The agency contends that
the nurse simply contacted the psychiatrist to inform her of what material
needed to be sent to the agency so that the complainant could be placed on
sick leave via the Family and Medical Leave Act. In early May and June
the psychiatrist complied with this request. The agency also contends
that it never suggested to the psychiatrist that management wanted her
job for someone else and the complainant never provides documentation
from the psychiatrist to rebut the agency's claims. Therefore, to a
reasonable person the inquiry does not amount to an intolerable activity.
The complainant also asserts that her working conditions were intolerable
due to her complaints filed in issue 1. However, due to the Commission's
agreement with the AJ that the complainant suffered no harm and thus,
that no discrimination occurred with respect to issue 1, the complainant
also fails to prove that her working conditions were intolerable in
this respect.<2>
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). With respect
to issue 3, the Commission finds that the AJ decision should be upheld
because substantial evidence in the record indicates that the denial of an
EVA award to the complainant was not based on retaliation or disability,
but due to her absenteeism. The complainant on appeal asserts that
because she was on leave pursuant to the Family and Medical Leave Act
(FMLA), 29 U.S.C.S. �� 2601, et seq. and 5 U.S.C.S. �� 6381 et seq., she
was not �absent for the greater part of FY'98.� FMLA allows individuals
to take up to twelve weeks off from work as leave without pay within a
twelve month period. 29 U.S.C.S. � 2612(a)(1); 29 U.S.C.S. � 2612(c).
The complainant concedes she took more than twelve weeks off in 1998,
most of which was done by using all of her allotted FMLA leave. Thus,
she was on leave without pay. Because extended leave without pay
is a reason documented by the agency for denial of an EVA award, the
Commission agrees that the agency's decision to deny the award was not
a pretext for discrimination or retaliation against the complainant.
Therefore, the Commission affirms the AJ's post-hearing factual findings
as they are supported by substantial evidence in the record.
Therefore, the Commission affirms the agency's final action implementing
the AJ's summary judgment decision with respect to issues 1 and 2.
With respect to issue 3, the Commission affirms the agency's decision
to implement the AJ's finding of no discrimination.
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
____08-06-02______________
Date
1For purposes of analysis, we assume complainant is an individual with
a disability and that the complainant's prior EEO activity was known to
the management officials.
2 In addition, the complainant contends that her working conditions were
intolerable as a result of being demoted and assigned to lesser duties.
This was the subject of a previous EEO complaint filed by complainant,
in which a finding of no discrimination was made and upheld on appeal.
Walker v. United States Postal Service, EEOC Appeal No. 01A13954 (August
30, 2001).