0120061156
03-23-2007
Marsha Green, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marsha Green,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200611561
Agency No. 1F-946-0041-03
Hearing No. 370-2005-0143X
DECISION
Complainant filed an appeal from the agency's final action dated November
9, 2005, finding no discrimination with regard to her complaint. In her
complaint, dated May 9, 2003, complainant, a Mail Handler at the agency's
Oakland CA Processing and Distribution Center, alleged discrimination
based on race (African American), sex (female), disability (carpal tunnel
syndrome, back, and stress), and in reprisal for prior activity when:
1. On November 3, 2002, she was issued a Letter of Warning;
2. On November 26, 2002, she received a work status report and a limited
duty job offer in which the agency failed to accommodate her disability;
3. On January 7, 2003, she received a Five-Day No-Time-Off Suspension;
4. On July 17, 2003, she was issued a Notice of 14-Day Suspension
charging her with Failure to Follow Instructions and Unsatisfactory
Conduct/Disrespect to a Manager;
5. On April 7, 2004, she was issued a Notice of Removal, dated April
6, 2004, charging her with Unacceptable Conduct/Engaging in a Verbal
Altercation with Another Postal Employee while on Official Duty and
Unauthorized Absence from Work Assignment; and
6. On April 7, 2004, she was placed on Administrative Leave.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On
September 14, 2005, the AJ issued a decision without holding a hearing,
finding no discrimination and dismissing claims 1 and 2 due to untimely
EEO Counselor contact. The agency's final action implemented the AJ's
decision.
Initially, upon review, the Commission finds that the agency properly
dismissed claims 1 and 2 due to untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2). The record indicates that
the alleged incidents occurred on November 3, 2002, and November 26,
2002, respectively, but complainant did not contact an EEO Counselor
until February 3, 2003, which was beyond 45-day time limit set by
the regulations. We find that the November 26, 2002 incident was a
discrete act.
Turning to claims 3 through 6, 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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. With regard to claim
3, the record indicates that during the relevant time period at issue,
complainant, when she and some other employees were not permitted to go
home early, had a confrontation with her acting supervisor. Specifically,
complainant threw a spray can of air freshener against the wall of the
supervisor's office. When the supervisor threatened to call security,
complainant stated, "Call the mother fucker. They don't mind or care
about me walking around the mother fucking post office and assuring
that the mother fucking chalks are in place, and the flags. I bet if
this mother fucker burns to the ground, how many mother fuckers will
be working . . . punk ass bitches." The AJ found that the agency's
issuance of the Letter of Warning appeared a reasonable, appropriate
response to complainant's actions and was consistent with discipline
given other similarly situated employees.
With regard to claim 4, the record indicates that the discipline was
issued because of complainant's conduct and disrespect toward a manager on
July 9, 2003. Complainant was instructed by a manager to bring in medical
documentation if she wished to take leave and complainant responded,
"I'll go home, but I ain't bringing you no medical documentation." The
AJ found that complainant was disciplined consistent with the agency's
policy.
With regard to claim 5, the AJ noted that on January 7, 2004,
complainant had another altercation with her coworker. Complainant
took the coworker's car keys and cell phone, refused to return them,
and later damaged the cell phone by throwing it down. Following two
"just cause" hearings, the alleged Notice of Removal at issue was issued
to complainant on April 7, 2004. After a review of the record, the AJ
determined that the Notice of Removal was consistent with the agency's
policy considering complainant's past record of disciplinary actions.
With regard to claim 6, on April 7, 2004, coinciding with the issuance of
Notice of Removal, complainant was notified that she was being placed on
administrative leave effective immediately. The AJ stated that it was
clear that the agency's policies provided for an employee to be placed
on paid administrative leave, at its discretion, as a part of removal
proceedings such as here. There is no indication that complainant was
treated differently than similarly situated individuals.
The Commission agrees with the AJ that the agency, assuming arguendo
that complainant had established a prima facie case of discrimination,
has articulated legitimate, nondiscriminatory reasons for the alleged
incidents. The Commission does not address in this decision whether
complainant is an individual with a disability.
Accordingly, the agency's decision 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
March 23, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
??
??
??
??
5
0120061156
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036