0120103730
02-01-2011
Brenda J. Jones, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Brenda J. Jones,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120103730
Hearing No. 480-2009-00144X
Agency No. 1F-908-0020-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's August 12, 2010 final action concerning an equal
employment opportunity (EEO) complaint claiming 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Mail Handler
Equipment Operator at the Agency's Long Beach Processing and Distribution
Center in Long Beach, California.
On August 22, 2008, Complainant filed the instant formal complaint.
Therein, Complainant claimed that the Agency discriminated against her
on the bases of disability (carpal tunnel) and in reprisal for prior
protected activity when:
on or around May 30, 2008, she became aware that a fraudulent PS Form
3971 had been submitted in February 2008, which adversely affected her
income, leave, insurance payments, etc.
The record reflects that on May 10, 2007, Complainant sustained an injury
which was accepted by the Office of Workers' Compensation Program (OWCP).
Complainant submitted documentation to Agency management indicating she
would return to work on February 4, 2008. However, Complainant did
not report to work on February 4, 2008. The record further reflects
that Complainant's former supervisor (FS) submitted a PS 3971 "Request
for or Notification of Absence" as required by postal regulations.
The record reflects that because of Complainant's absence and the note
from her physician, Complainant's absence was processed as sick leave
due to Family Medical Leave Act. Complainant received a pay adjustment
for Pay Period 4 - Week 2 involving the February 5, 2008 PS Form 3971.
Finally, the record reflects that when Complainant returned to work in
May 2008, she was offered a limited duty assignment to accommodate her
medical restrictions, which she accepted.
Following the investigation into her formal complaint, Complainant
requested a hearing before an EEOC Administrative Judge (AJ). On August
2, 2010, the AJ issued a decision by summary judgment in favor of
the Agency. The Agency fully implemented the AJ's decision in its
final action.
In her decision, the AJ found no discrimination. The Agency found that
Complainant did not show by a preponderance of the evidence that she was
discriminated against on the bases of disability and reprisal.1 The AJ
further concluded that Complainant did not prove, by a preponderance of
the evidence, that the Agency's proffered reasons for its actions were a
pretext for discrimination. The AJ acknowledged that Complainant had
engaged in prior protected activity. However, the AJ determined that
Complainant did not base the instant claim upon that protected activity
but rather on the reoccurrence of her OWCP injury. The AJ further found
that a review of the record reflects that Complainant acknowledged that
there was no evidence that the PS Form 3971 in question was intentionally
or fraudulently submitted. The AJ found, however, Complainant stated that
FS claimed that she had completed the PS Form 3971 with the assistance
of the Manager, Distribution Operations (MDO) in which MDO denied she
was involved. Moreover, the AJ found that the error in Complainant's
PS Form 3971 was corrected by a pay adjustment on May 6, 2008.
The AJ noted that FS stated that during the relevant time, she was
unaware that Complainant was recuperating from surgery on February 5,
2008 because Complainant "never apprised me of surgery on or before
the date in question." FS stated that she completed a PS Form "for the
Complainant on the date in question because it was forwarded to me as all
requests of my pay location are my responsibility. I did not personally
take the call from the Complainant as the call was taken by the tour 1
general clerk, [named Clerk]."
FS stated that during Pay Period 4 - Week 1, she retrieved Complainant's
PS Form 3971 from the desk of the Tour 2 General Clerk "where 3971's
previously initiated before my arrival to work are placed. I noted the
clear and distinct request of 'Sick' checked off and checked off on the
bottom was the word, 'Other.' Next to the line 'Other' were the letters,
'FMLA.' I processed it as requested as I would normally do with any other
3971 [emphasis in the original]." Specifically, FS stated "what I had
previously received was a doctor's note indicating that the Complainant
would return to work on February 4, 2008. It was dated on January 2,
2008." FS stated that when she received the PS 3971 for FMLA "it made
sense to me that a work related code would no longer be transmitted for
the Complainant's leave which commenced on February 5, 2008. Since the
Complainant was cleared to return on February 4, 2008, yet apparently
did not report on February 4th or 5th, I transmitted the FMLA-Sick Leave
for both days. I had not heard, read or received any information to the
contrary and therefore had no doubts that I was accurate in my timekeeping
[emphasis in its original]."
MDO stated that during the relevant time, she did not complete
Complainant's PS Form 3971 and "when Complainant called, [named Clerk] was
the recipient of that call, took the information and completed the form."
MDO stated that at that time, she was not aware that Complainant was
still recuperating from surgery "because of the medical documentation
dated January 2, 2008 submitted by her Doctor '[named doctor]' that she
was due back on the 4th of February."
The Clerk stated that she did not complete Complainant's PS Form 3971.
Specifically, the Clerk stated "I only entered the employee's name,
last 4 numbers of her Social Security number, the date submitted and the
leave type. If the Complainant claims that she did not call-in that day,
the only supposition I can make is that maybe the 3971 was issued per
instructions of the Tour 2 Supervisor."
On appeal, Complainant argues that the AJ erred in issuing a summary
judgment because there are material facts at issue. For instance,
Complainant argues that there are contradictory statements "regarding
who and why was the PS Form 3971 processed, the Postal Service Office
Call-In Sheet for all employees that called in on 02/05/08 (my name is
not on it), and the fraudulent PS form 3971 scheduling me taking sick
leave Approved, FMLA and at the time I did not have a FMLA on file."
ANALYSIS AND FINDINGS
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.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, we can discern nothing in the record
reflecting the discriminatory animus motivated the Agency actions in the
instant claim. Therefore, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency's final action because
the Administrative Judge's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
February 1, 2011
__________________
Date
1 For purposes of this analysis, we assume without finding that
complainant was a qualified individual with a disability.
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0120103730
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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