01a40895
08-19-2005
Sharon F. Rutherford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon F. Rutherford v. United States Postal Service
01A40895
August 19, 2005
.
Sharon F. Rutherford,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40895
Agency Nos. 4C-080-0072-00, 4C-080-0043-01
Hearing No. 170-A2-8254X
DECISION
Complainant appeals to the Commission from the agency's October 29, 2003
decision finding no discrimination. Complainant alleges discrimination
on the bases of disability (chronic Patellofemoral Arthritic Syn) and
reprisal when: (1) she was denied a permanent position authorized by the
Office of Workers' Compensation Programs (OWCP) with appropriate drop
days; and (2) she was denied the opportunity to bid on a window position
with Saturdays and Sundays off. Complainant also alleges discrimination
on the bases of disability (chronic Patellofemoral Arthritic Syn), sex
(female), and reprisal when: (3) on January 19, 2001, the Postmaster
denied her the right to work overtime to �clear the carriers.� On
September 18, 2003, an EEOC Administrative Judge (AJ), issued a decision
procedurally dismissing a portion of complainant's complaint and finding
no discrimination on the remainder. The agency, by decision dated October
29, 2003, issued a decision adopting the AJ's September 18, 2003 decision.
Complainant now appeals the agency's October 29, 2003 decision.
The record indicates that complainant filed two complaints (identified
above) that were consolidated after an investigation. After an
investigation, complainant requested a hearing. On September 23,
2002, the agency submitted a Motion for a Decision Without a Hearing.
On October 9, 2002, complainant responded with Opposition Memorandum to
Agency's Motion for a Decision Without a Hearing. On March 31, 2003,
the AJ issued an Order Granting Partial Summary Judgment and Directing a
Hearing on Remaining Claims. The Order found that complainant was not a
person with a disability under the Rehabilitation Act, thus complainant
failed to establish a prima facie case of disability. Further, the AJ
found that complainant's claim regarding the denial of an opportunity to
bid on a window position with Saturdays/Sunday drop days is untimely.
The AJ found that complainant's claim of harassment, first raised in
complainant's opposition to summary judgment, was untimely. The AJ
found that assuming it was not untimely, complainant failed to establish
a prima facie case of harassment. Finally, the AJ found that there were
material facts in dispute with regard to complainant's claims of reprisal.
The AJ concluded by indicating that he would hear testimony with regard
to �[w]hether the Agency retaliated against the Complainant when she
was denied a permanent restructured position with appropriate drop days
and when she was denied overtime on January 19, 2001.� The AJ held a
hearing on those issues and issued a decision dated September 18, 2003,
finding no discrimination.
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.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
The AJ first dismissed complainant's claim with regard to the denial of
the opportunity to bid on a window position with Saturdays and Sunday's
off (claim 2), finding it untimely pursuant to 29 C.F.R. � 1614.107(a)(2).
Specifically, the AJ found that complainant knew she was denied the
opportunity to bid on a window position with Saturdays and Sundays
off in June or July 1998. However, complainant did not contact an
EEO Counselor until, at the earliest, 1999, which is beyond the 45-day
limitation period. Thus, we find that claim 2 was properly dismissed.
Regarding complainant's claim of harassment raised for the first time in
her opposition to summary judgment, the AJ found the claim to be untimely.
Complainant, in her opposition to summary judgment, alleges she has
been denied a reasonable accommodation since March 1993 to present,
resulting in a pattern of harassment that is severe and pervasive.
We find, for the reasons set forth herein, that whether complainant
views her claim as harassment, or denial of reasonable accommodation,
the record, nonetheless, supports a finding of no discrimination.
Preliminarily, with regard to the remaining two claims (claims 1 and 3),
the AJ found that complainant failed to establish a prima facie case
of discrimination based on disability because she failed to show that
she is substantially limited in a major life activity. With regard
to complainant's allegations of sex discrimination, the AJ found that
complainant failed to establish a prima facie case because she has failed
to show that she was treated differently than other people outside of
her protected class. Finally, the AJ found that assuming complainant
established a prima facie case for all bases, the agency presented a
legitimate, nondiscriminatory reason for its actions which complainant
failed to adequately rebut.
With regard to claim 1, complainant alleges she was denied the position
on the bases of disability and reprisal. Complainant makes both a
reasonable accommodation and disparate treatment argument. The AJ, as
stated above, found that complainant failed to establish a prima facie
case of disability. With regard to complainant's reprisal claim, the
AJ found that the agency attempted to place complainant in the requested
position, but that the agency's efforts were thwarted by the Department
of Labor (the agency with the ultimate authority regarding the position).
The record indicates that complainant began working as a letter
carrier at the Voorhees, New Jersey Post Office on January 27, 1990.
On September 10, 1992, complainant sustained an on the job injury to
her knee. In February 1993, complainant underwent surgery. Upon her
return to work, complainant discovered she could not perform the same
duties as a letter carrier. In April 1993, the agency assigned her to
the Clerk Craft as a dispatcher, a regular craft position. In October
1997, the Post Office at Voorhees moved to a new facility. Because the
facility was much larger, complainant was required do significantly
more walking. Complainant found the additional walking to be outside
her medical restrictions. In response, on April 16, 1998, the agency
created a modified clerk position for complainant comprised of some of
the essential job duties of a clerk craft. The record indicates that
complainant has been in the modified clerk position for more than five
years. Further, the record indicates that the modified clerk position
is a full time job with the same employment benefits as an uninjured
clerk working in a regular bid position.
Complainant, however, wanted a permanent rehabilitation position
instead of her full time modified clerk position. The record indicates
that complainant, as a reasonable accommodation, requested a permanent
rehabilitation position, known as a LDC-69 rehab position. The record
indicates that the position complainant requested was a result of a
joint program with the United States Postal Service and the `Department
of Labor. The record indicates that complainant was placed in a modified
clerk position which is within her restrictions. Complainant testified
during the hearing that she has been in the position for over five years.
Complainant argues, although the position does not violate her medical
restrictions, she wants a permanent position, not a temporary modified
position. The agency is required to provide a reasonable accommodation,
not the accommodation of complainant's choice. We find the agency has
provided complainant with a reasonable accommodation. We make this
determination without making a finding as to whether complainant is an
individual with a disability under the Rehabilitation Act.
With regard to complainant's disparate treatment claim we also find
no discrimination. The record indicates that the agency requested that
complainant be placed in the permanent rehabilitation position. However,
due to insufficient and conflicting medical information, the Department
of Labor demanded more information. According to the agency, it is
not allowed to schedule a tie-breaking medical examination on its own.
Thus, the agency repeatedly requested that the Department of Labor
schedule the examination. The record indicates that since September
2002, all rehabilitation positions as a result of this joint program, are
under review. Thus, no agency employees are assigned under the program.
We find the agency has presented a legitimate, nondiscriminatory reason
for its action which complainant failed to adequately rebut. We make
this finding without making a determination as to whether complainant
is an individual with a disability under the Rehabilitation Act.
With regard to claim 3, the AJ found that complainant received the
same amount of overtime as other employees. The AJ found complainant
failed to rebut the agency's legitimate, nondiscriminatory reason for
denying overtime. The record indicates that complainant requested
overtime in order to clear letter carriers. At the time in question,
complainant's shift ended at 2:00 p.m. According to the agency,
the first letter carrier to be cleared did not return until 3:20 p.m.
The management official testified that it was not good business practice
to give complainant overtime, particularly since it would only take 15
minutes to clear the carriers. If he had granted complainant overtime
agency on January 19, 2001, then the agency would have had to grant
complainant approximately two hours of overtime for 15 minutes worth
of work because complainant would have had to wait from 2:00 to 3:20
until there were letter carriers to be cleared. Further, complainant
testified that she has worked overtime on par with her co-workers
that are on the overtime desired list. We find the agency articulated
a legitimate, nondiscriminatory reason for the denial for overtime
which complainant failed to adequately rebut. Further, we note that
supervisors were clearing the carriers. The act of the supervisors
clearing the carriers resulted in a class action grievance filed by
the Union which was settled. All members of the class, including
complainant, were compensated overtime. Thus, everyone was treated
the same way with regard to overtime on this particular day, and the
action was not a result of discrimination. Complainant failed to show,
by a preponderance of the evidence that she was discriminated against on
the bases of disability, sex, or reprisal. Again, we make this finding
without making a determination as to whether complainant is an individual
with a disability under the Rehabilitation Act.
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
August 19, 2005
__________________
Date