Varshaben B. Jhala, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 12, 2005
01a53830 (E.E.O.C. Oct. 12, 2005)

01a53830

10-12-2005

Varshaben B. Jhala, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Varshaben B. Jhala v. United States Postal Service

01A53830

October 12, 2005

.

Varshaben B. Jhala,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A53830

Agency No. 1F-927-0032-03

Hearing No. 340-2004-00030X

DECISION

Complainant filed an appeal from an agency's March 23, 2005 notice

of final action concerning her 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., the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,

and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq.

In her complaint, dated March 29, 2003, complainant, a Mail Processing

Clerk at the agency's Santa Ana Processing and Distribution Center (P&DC),

alleged discrimination based on race (Asian, Indian), age (DOB: 7/21/60),

disability, and in reprisal for prior EEO activity when: (1) her schedule

change requests were denied on November 20, 2002, December 7, 2002,

and January 15, 2003; (2) her work hours were changed from 1700 to 1900;

(3) she was sent home due to her light duty status on February 13, 2003;

(4) she was subjected to an investigative interview on March 1, 2003; and

(5) she was issued a seven-day suspension on March 5, 2003. Following the

completion of the investigation of her complaint, complainant requested

a hearing before an EEOC Administrative Judge (AJ). On January 31,

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.

Upon review, the Commission finds that the grant of summary judgment was

appropriate, as no genuine dispute of material fact exists. Specifically,

the AJ stated, assuming arguendo that complainant had established a prima

facie case of discrimination, that the agency has articulated legitimate

non-discriminatory reasons for its actions. With regard to the denial of

complainant's schedule change of her starting time (from 1900 to 1700),

described in claim (1), the agency stated that management did not approve

any requests with indeterminate ending dates (as complainant's December 7,

2002 request appeared to be). Management approved the requests that were

assigned to different schedules than complainant, and were for changes

of only a one-half hour change (for two requests) or a one-hour change

(for two requests) to the employees' starting times, in contrast to

complainant's request for a two-hour change of her starting time.

With regard to claim (2), the agency stated that in September 2002, the

processing of Priority Mail by the Santa Ana P&DC, complainant's work

place, was consolidated with Express Mail and this processing was moved

to the Anaheim Processing and Distribution Facility. As a result of

this consolidation, employees, including complainant, who were assigned

to pay location 332 had their jobs abolished and new jobs were made

available to them. The agency notified the employees in writing that

their schedules were going to change due to the arrival of special mail

and the need to have more employees working at the end of the shift in

order to process the mail. Complainant and the other clerks did not like

the new schedule and requested to be returned to their old schedules.

The agency denied all the requests for a permanent schedule change;

only requests for temporary schedule changes were approved, including

complainant's requests. Complainant placed her bid for a permanent

position on October 15, 2002, and based on seniority and preference, she

was awarded a position which had Sunday/Monday off with a starting time

of 7:00 p.m., with one exception, Saturday, the start time was 6:00 p.m.

With regard to claim (3), on February 4, 2003, complainant submitted a

request for a light duty assignment, and the agency gave her temporary

light duty work until there was no more light duty work available.

On February 13, 2003, the agency sent complainant home because it had

no work available for her within her restrictions and because her light

duty form was incomplete. The agency stated that complainant had not

returned a properly completed form returning her to work.

With regard to claims (4) and (5), the agency stated that after

complainant faxed in a copy of her medical restrictions, including a

completed light duty form, requesting that she be returned to work on

February 17, 2003, it created work for her. On February 17, 2003, her

supervisor requested that complainant return to work; he called and left

a message on her answering machine and, also, sent her an express mail

advising her to return to work on February 19, 2003. Complainant did

not return to work on February 19, 2003, but rather returned to work

on February 20, 2003. On March 1, 2003, her supervisor interviewed

complainant regarding why she did not return to work on February 19, 2003.

Initially, complainant stated that she never received the voice mail and

stated that she received the express mail on the morning of February

20, 2003. However, when the agency showed complainant a copy of the

tracking and confirmation sheet that proved she received the express

mail on February 19, 2003, complainant admitted receiving the mail on

February 19, 2003. Consequently, on March 5, 2003, the agency issued

complainant a seven-day suspension for falsification, unacceptable

conduct and AWOL for failing to report to work on February 19, 2003.

The record indicates that through the grievance process, the suspension

was reduced to a discussion.

Based on the foregoing, the AJ determined that the agency articulated

legitimate, non-discriminatory reasons for the alleged incidents. The AJ,

further, determined that complainant failed to show by a preponderance

of the evidence that the agency's articulated reasons were pretextual.

Accordingly, after a review of the record in its entirety, including

consideration of all statements submitted on appeal, the agency's final

action is hereby AFFIRMED because the AJ's issuance of a decision without

a hearing was appropriate and a preponderance of the record evidence

does not establish that discrimination occurred.<1>

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

October 12, 2005

__________________

Date

1The Commission does not address in this

decision whether complainant is a qualified individual with a disability.