Beatrice Meir, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 16, 2007
0120061031 (E.E.O.C. May. 16, 2007)

0120061031

05-16-2007

Beatrice Meir, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Beatrice Meir,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200610311

Agency No. 4F-900-0166-03

Hearing No. 340-2005-00131X

DECISION

Complainant filed an appeal from the agency's final action dated October

28, 2005, finding no discrimination with regard to her complaint. In her

complaint, complainant, a Mail Processing Clerk at the agency's Los

Angeles Processing and Distribution Center (PDC), alleged discrimination

based on race/color (Black/black), sex (female), age (DOB: 9/10/1944)

and disability (knee and lower back) when on June 19, 2003, her bid

was abolished; she was given a few hours to bid on a new assignment;

and her doctor's request for her to extend her stay at the main office

was denied.

Upon completion of the investigation of the complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On

September 15, 2005, the AJ issued a decision without holding a hearing,

incorporating the agency's motion for such, 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.

The Commission finds that grant of summary judgment was appropriate,

as no genuine dispute of material fact exists. In this case, the AJ

determined that, assuming arguendo that complainant had established a

prima facie case of discrimination, the agency articulated legitimate,

nondiscriminatory reasons for the alleged actions.

The record indicates that during the relevant time period at issue,

the agency's human resources department with the cooperation of the

union decided to downsize complainant's unit to improve efficiency and

reduce costs. In accordance with the collective bargaining agreement,

on June 20, 2003, complainant was given notice that her position would

be "excessed" on June 28, 2003, but that she would have the opportunity

to bid on another vacant position at a different facility. The agency

stated this decision was made by upper level management (not complainant's

immediate supervisors or her postmaster), so as to allocate staff in a

rational and cost-effective manner. The agency also indicated that five

other mail processing clerks in complainant's unit had their job excessed

as well. Complainant returned to her original unit on November 14, 2003,

after she was excessed and transferred. In fact, of the five employees

who were excessed along with complainant, complainant was the first to

be allowed to bid back into her original unit.

The agency, undisputed by complainant, indicated that there was no

evidence to indicate that complainant was on a light or limited duty

position at the PDC at the time of the alleged incidents. The agency

also indicated that complainant never requested accommodations and never

made her supervisors aware of her purported disabilities. The Commission

finds that complainant has failed to show that she requested a reasonable

accommodation or that the agency should have known that she may have

needed an accommodation. The Commission, without addressing whether

complainant was an individual with a disability, finds that she failed

to show that she was denied a reasonable accommodation or that any agency

actions were motivated by discrimination.

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

May 16, 2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

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0120061031

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036