Sharon F. Rutherford, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 19, 2005
01a40895 (E.E.O.C. Aug. 19, 2005)

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