01a51390
05-02-2005
Cindy L. Duesler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cindy L. Duesler v. United States Postal Service
01A51390
May 2, 2005
.
Cindy L. Duesler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51390
Agency No. 4B-120-0021-02
Hearing No. 160-2004-00014X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Limited Duty Carrier Technician
in the Utica New York Post Office facility, filed a formal EEO complaint
on May 29, 2002, alleging that the agency discriminated against her on
the bases of sex (female), disability, and age (D.O.B. 8/22/1961) when,
since September 5, 1995:
(1) she was subjected to continual shift changes and assigned work
beyond her medical limitations;
she was sent to numerous physicians without being given a permanent
rehabilitation assignment;
she was placed on Administrative Leave effective January 3, 2002; and
she was issued a Notice of Removal, effective June 22, 2002, charging
her with unauthorized removal of postal supplied property.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ concluded that complainant failed to
establish a prima facie case of disability, sex and/or age discrimination.
Specifically, the AJ found that complainant has not established that she
is a qualified individual with a disability since her impairment of an
acute lumbosacral strain disc degeneration did not substantially limit
one or more major life activities. The AJ also found that most of the
instances alleged by complainant of being sent to numerous physicians
without being given a permanent rehabilitation position occurred prior
to complainant reaching the age of 40. The AJ further found that there
was no evidence on the record to suggest that the actions taken against
complainant were based on her age. Finally, the AJ found that there
was no evidence in the record that male employees were treated more
favorably than complainant under similar circumstances. Accordingly,
the AJ concluded that complainant has failed to meet her burden of
proving sex, age or disability discrimination. The agency's final order
implemented the AJ's decision.
On appeal, complainant contends, among other things, that the AJ erred
in granting summary judgment because he failed to consider her testimony
or medical evidence. Complainant argued that she is an individual with
disability within the meaning of the Rehabilitation Act. Complainant also
argued that she established a prima facie case of sex discrimination
because males employees were given permanent rehabilitation assignments
before her.<1>
The Commission's review of a decision without a hearing is de novo,
meaning that it is done without regard to the legal or factual conclusions
of the previous decision maker. EEOC Management Directive 110, Chapter 9
(Section VI) (Revised 1999). 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 only appropriate where a court
determines that, given the substantive legal and evidentiary standards
that apply to the case, there exist 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, the issuance of a decision without a hearing
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without a hearing only
upon a determination that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003).
Upon review, the Commission finds that assuming arguendo that complainant
established a prima facie case of discrimination, the agency has
articulated a legitimate non-discriminatory reason for its actions.
The Commission also finds that complainant failed to show pretext
following the agency's legitimate, nondiscriminatory reasons for its
actions. Specifically, regarding claim (1), the record reveals that
limited duty assignments were subjected to change due to the needs of the
service, employees' changes in medical work restrictions and changes in
the number of hours employees' may work. The record also reveals that
complainant was never assigned or asked to perform any work outside of
her restrictions. In fact, the record shows that she was reminded on
several occasions by her supervisor not to perform any work outside of her
restrictions and to notify him if any of her tasks would create a problem.
An example, once complainant stated that she had problems closing the
gate that secures the carriers vehicles, and that she was instructed
to not close the gates. Regarding claim (2), the agency alleged that
it was not the agency who sent complainant to numerous doctors and
failed to afford complainant a permanent rehabilitation assignment.
The agency stated that the Office of Workers Compensation Programs (OWCP)
was the sole decision maker with respect to complainant's rehabilitation
assignment. Finally, the agency stated that complainant was placed on
Administrative Leave and later issued a Notice of Removal, because of
the removal of a special chair that had been purchased by the agency.
The record reveals that the agency purchased a special lumbar support
chair for complainant's use, according to her medical restrictions,
and without authorization complainant removed the chair from the postal
facility to her home. The record also reveals that complainant admitted
that she removed the chair because she did not want anyone �to use and
ruin it.� The record reveals that complainant confessed that she knew
that she was not authorized to do so.
After a careful review of the record, the Commission finds that a decision
without a hearing was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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 2, 2005
__________________
Date
1In her appeal, complainant did not address
the age discrimination claim.