01a43596
05-31-2005
Lisa Kisner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lisa Kisner v. United States Postal Service
01A43596
May 31, 2005
.
Lisa Kisner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43596
Agency No. 4G-760-0064-03
Hearing No. 310-2004-00012X
DECISION
Complainant timely initiated an appeal from the agency's Notice of Final
Action 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.,
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 record reveals that complainant, a Letter Carrier at the agency's
Guymon facility in Oklahoma, filed a formal EEO complaint on March 13,
2003, alleging that the agency discriminated against her on the bases
of sex (female), disability (cataracts, anxiety/depression), and age
(D.O.B. 2/5/57) when:
(1) On August 30, 2002, complainant was issued a Letter of Warning
charging complainant with Continued Unsatisfactory Work Performance
and Failure to Follow Instructions;
On October 1, 2002, complainant received an on Duty Seven-Day Suspension
charging her with Continued Unsatisfactory Work Performance and Failure
to Follow Instructions;
On January 27, 2003, complainant was issued a Letter of Warning charging
her with Failure to Meet the Attendance Requirements of her position
due to repeated unscheduled absences;
On February 24, 2003, complainant received a Fourteen-Day Suspension
charging her with Continued Unsatisfactory Work Performance and Failure
to Adhere to Established Procedures/Instructions;
On April 17, 2003, complainant was placed on non-duty status; and
Complainant was subsequently issued a Notice of Removal dated April 19,
2003, for Continued Unsatisfactory Work Performance and Unsatisfactory
Attendance/AWOL.
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 March 11, 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 age discrimination since she failed to identify a comparison employee
substantially younger than herself. The AJ also found that complainant
failed to establish a prima facie case of sex discrimination since the
identified male comparative employee was treated in the same manner as
complainant, in that his conduct ultimately lead to his removal from
the agency. Additionally, the AJ determined that complainant failed
to establish that she was a qualified individual with a disability.
Specifically, the AJ found that complainant failed to provide any
information to the agency regarding her limitation as a result of a
disability and that complainant did not request an accommodation. The AJ
stated that nothing in the record, nor anything raised in complainant's
response to the Notice of Intent to Issue Decision Without a Hearing,
indicated that the agency was aware of any limitations which would
make her a qualified individual with a disability. Specifically, the
AJ noted that complainant's eyesight was being corrected by cataract
surgery which makes it clear that her cataracts were not a disability.
The AJ found that regardless of whether complainant established a
prima facie case of discrimination, the agency articulated legitimate
non-discriminatory reasons for its actions. The AJ noted that in its
Report of Investigation, the agency articulated non-discriminatory
reasons for each instance of disciplining complainant. Further, the AJ
found that complainant failed to establish that the agency's legitimate,
non-discriminatory reasons were pretext for discrimination.
On April 9, 2004, the agency issued a Notice of Final Action fully
implementing the AJ's decision.
On appeal, complainant provides documentation showing that she has
been approved for disability retirement. Specifically, complainant
provides an April 27, 2004 letter from the Office of Personnel Management
stating that her application for disability retirement has been approved.
The agency notes that complainant submitted documentation showing that
her unopposed application for disability retirement benefits was approved
after the AJ's decision in this case was issued. The agency argues
that because complainant was allowed to file for disability retirement
this does not satisfy her burden of proving she was disabled under the
Rehabilitation Act.
The agency argues that the AJ correctly found that complainant could
not establish a prima facie case on any basis alleged. Additionally,
the agency argues that no evidence has been presented to show that the
agency's legitimate, non-discriminatory reasons for its actions were a
pretext for unlawful discrimination. Finally, the agency claims that to
the extent complainant attempted to allege a hostile work environment
claim, that claim fails. The agency states that even if complainant
showed that she was subject to severe and pervasive harassment, she
has presented no evidence that any harassment occurred because of her
membership in a protected group. The agency notes that to the contrary,
complainant stated in her affidavit that she was targeted �due to my
involvement in [Person A's] case.�
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. 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. We note that complainant does
not argue on appeal that the AJ incorrectly determined that she did not
request a reasonable accommodation. Furthermore, we do not address in
this decision whether complainant is an individual with a disability.
The agency's decision finding no discrimination 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
May 31, 2005
__________________
Date