01a52763
04-28-2006
Telita J. Simpson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Telita J. Simpson v. United States Postal Service
01A52763
April 28, 2006
.
Telita J. Simpson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52763
Agency No. 4H-370-0212-02
Hearing No. 250-2003-08162X
DECISION
Complainant filed an appeal from the agency's final action dated February
11, 2005, finding no discrimination with regard to her complaint.
In her complaint, complainant, a Rural Carrier Associate at the
agency's Troy Post Office, alleged discrimination based on disability
(perceived) when she was issued a notice of removal for failure to follow
instructions/unsatisfactory performance effective February 22, 2002,
and when following her reinstatement on May 7, 2002, she was removed
from her job a second time on October 8, 2002. Following the completion
of the investigation of the complaint, complainant requested a hearing
before an EEOC Administrative Judge (AJ). On January 26, 2005, the AJ
issued a decision without holding a hearing, finding no discrimination.
The agency's final action implemented the AJ's decision.
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.
In the instant case, the Commission finds that the grant of summary
judgment was appropriate as no genuine dispute of material fact exists.
The AJ found that the agency did not discriminate against complainant.
The AJ also found that, assuming arguendo that complainant established
a prima facie case of discrimination, the agency articulated legitimate
non-discriminatory reasons for complainant's removal. Specifically,
the Postmaster stated that complainant was removed because she had an
ongoing problem with the proper procedures for handling all classes
of mail and numerous warnings. He stated that on October 17, 2001,
she gave complainant an official discussion on proper procedures for
handling all classes of mail; on October 19 and 23, 2001, she spoke
to complainant about her mishandling of the mail; on October 30, 2001,
she gave complainant another Official Discussion and told her to read the
correct endorsements in the PO 603; on November 1, 2001, after the problem
did not cease, she held a Pre-Disciplinary Investigation with complainant
and the following day, she issued a 7-day suspension; on December 3, 2001,
she issued complainant a 14-day suspension; and, on January 14, 2002,
she issued complainant a Letter of Removal effective February 22, 2002.
The AJ noted that the agency submitted in the record numerous pieces
of mail, which were dated from December 1, 2001, through January
22, 2002, that were allegedly not properly handled by complainant.
The AJ also noted that complainant filed a grievance regarding the
foregoing removal which was subsequently resolved. In that settlement,
complainant was scheduled for training at the Rural Carrier Academy and
upon her completion of the training, she was to be returned to work on
her assigned route. Her time off was to be recorded as a suspension to
remain in her file for two years. The parties also agreed that this
action might be cited by management in any subsequent disciplinary
actions of complainant. Complainant attended the training on May 7-9,
2002, and she was assigned a route on May 10, 2002.
The Postmaster stated that she issued complainant the October 8,
2002 removal at issue due to complainant's failure to follow the proper
procedures for handling all classes of mail and unsatisfactory performance
since her May 10, 2002 return. In that notice, the Postmaster cited
complainant's prior disciplinary actions.
Based on the foregoing, the AJ found, and we agree, that the agency
articulated a legitimate, nondiscriminatory reason for its action, namely
that it investigated the situation and repeatedly warned complainant
that she had to follow the agency rules as to the handling of mail.
The AJ also found, and we also agree, that complainant, however, failed
to provide any evidence that the articulated reason was pretextual or
that any agency action was motivated by discrimination.<1> Accordingly,
the agency's final action 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
April 28, 2006
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.
Furthermore, we note that complainant has not claimed that she was denied
a reasonable accommodation.