01a51369
04-06-2005
Camilla R. Frazier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Camilla R. Frazier v. United States Postal Service
01A51369
April 6, 2005
.
Camilla R. Frazier,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51369
Agency No. 1A-113-007-02
Hearing No. 160-2003-O8485X
DECISION
Complainant filed a timely appeal with this Commission from an agency
final action, dated October 28, 2004, pertaining to her formal complaint
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
During the relevant time, complainant was a Mail Processor, PS-4, at
the agency's Processing and Distribution Center in Brooklyn, New York.
On March 4, 2002, complainant filed the instant formal complaint,
claiming that she was the victim of unlawful employment discrimination
on the bases of disability (on-the-job injury, IOD ) and age (D.O.B.
12/18/61) when, on December 7, 2001, she was issued a Notice of Removal.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On October 19, 2004, 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 or age discrimination. Moreover, the AJ stated that
complainant failed to address the agency's evidence that her removal
from agency employment was due to complainant's lack of attendance. <1>
The agency's final action, dated October 28, 2004, implemented the AJ's
decision finding no discrimination.
After a careful review of the record, the Commission determines that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. The AJ's decision properly summarized the relevant facts
and referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes.
The record reflects that the agency provided a legitimate
non-discriminatory reason for complainant's removal, specifically her
inability to follow agency regulations and her poor attendance record.
According to an agency manager, complainant had previously been issued the
following discipline: a Letter of Warning for failing to be in regular
attendance; a 14-Day Suspension for failing to report an accident;
and two 7-Day Suspension for being absent without Official Leave.
Moreover, complainant's supervisor attested that complainant provided
no medical documentation for an absence that spanned the period from
August 15, 2001, until her removal, despite several requests from
the agency. The supervisor also stated that during an October 17, 2001
pre-discipline interview, complainant provided documents indicating
that she could return to full duty, but she nevertheless stated that
she could not do so. The supervisor told her to get paperwork from
her doctor regarding a light duty limitation and return on November 13,
2001 for another pre-discipline interview. According to the supervisor,
complainant failed to report to the interview or submit further medical
evidence to substantiate her absence.
The Commission further determines that the record supports a finding
that complainant did not establish that the agency's articulated reason
for her removal, as discussed above, was a pretext for discrimination.
Accordingly, the agency's decision implementing the AJ's finding of no
discrimination was proper and 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
April 6, 2005
__________________
Date
1The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.