01996466
04-10-2002
Doris J. Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Doris J. Moore v. United States Postal Service
01996466
04-10-02
.
Doris J. Moore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996466
Agency No. 4-H-350-0058-98
Hearing No. 130-99-8058X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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. ; and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant has established by
preponderant evidence that the agency discriminated against her on the
bases of race (Black), color (black), sex (female), national origin
(African-American), disability (knee injury) and reprisal (prior EEO
activity)<1> when the agency denied her request for reinstatement.
BACKGROUND
The record reveals that complainant had been a Clerk Typist at the
agency's Main Post Office in Birmingham, Alabama. On November 11, 1992,
complainant was involved in a car accident which resulted in an injury
to her knee. She was released to return to work on January 27, 1993.
That same day, she was informed that her position would be abolished
through restructuring effective February 6, 1993. Complainant was then
transferred to the position of Mail Processor. She indicated, however,
that she would have difficulty with this position in that it entailed
a lot of standing which she could not do due to her injury. The record
indicates that complainant was absent from duty since February 12, 1994.
Complainant was issued a Notice to Report on March 25, 1994. The agency
denied her request for light duty on April 11, 1994. The agency sent
complainant a Notice of Removal on April 14, 1994, for extended absence
without official leave and failure to meet the physical requirements of
her position.<2> The Notice of Removal cited complainant for failure
to respond to the agency's Notice to Report. Complainant was removed
effective November 14, 1994.
On November 12, 1997, complainant asked the agency to reinstate her.
By letter dated November 15, 1997, the agency's Human Resource Specialist
(the Specialist) denied her request. The Specialist noted in her
letter that complainant was removed from service and that the agency
had a policy of disqualifying applicants who has been removed from the
agency or from other federal employment. Believing she was a victim
of discrimination, complainant filed a formal EEO complaint with the
agency on April 13, 1998, alleging that the agency had discriminated
against her as referenced above. 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 race, color, sex, national origin, and/or disability discrimination.
Specifically, the AJ found that complainant failed to demonstrate that
similarly situated employees not in her protected classes were treated
differently under similar circumstances. In particular, the AJ noted
that the two individuals who were granted reinstatement were not removed
for cause or resigned when given notice of removal. Furthermore, the AJ
noted that complainant failed to establish a causal connection between
the agency's decision to deny reinstatement and her prior EEO activity.
Assuming complainant had established her prima facie cases of
discrimination, the AJ concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Further, the AJ found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination
and/or retaliation.
The agency's final decision implemented the AJ's decision. It is
from this decision complainant appeals. Complainant argues that the
reinstatement is just the most recent event of the agency's chain of
discriminatory acts. She raises claims against the agency's removal
action, her reassignment to the Mail Processor position, and other
incidents that occurred during her tenure with the agency.
ANALYSIS AND FINDINGS
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 does not
sit as a fact finder. Id. 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. A disputed 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.
An AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, we find the AJ properly
determined that there was no genuine issue of material fact in this
case and summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Complainant does not contest the
facts as presented by the AJ in his decision. She does not raise
issues of material fact in her appeal nor do we find any upon review.
Furthermore, we conclude, assuming complainant established her prima
facie cases of discrimination, that she failed to present evidence
that any of the agency's actions were in retaliation for complainant's
prior EEO activity or were motivated by discriminatory animus toward
complainant's race, sex, color, national origin, sex, and/or disability.
Complainant tries to resurrect her claims of discrimination regarding the
1994 removal action and the agency's leave donation program, however these
issues have been addressed by the Commission. Doris J. Moore v. United
States Postal Serv., EEOC Appeal No. 01956914 (March 13, 1996), req. for
recons. denied, EEOC Request No. 05960446 (August 8, 1996) (affirming
the agency's dismissal of complainant's complaint of discrimination
regarding the removal action); Doris J. Moore v. United States Postal
Serv., EEOC Appeal No. 01962420 (May 12, 1998), req. for recons. denied,
EEOC Request No. 05980935 (July 11, 2001) (finding no discrimination as
to complainant's claim regarding the agency's leave donation program).
Therefore, these issues are not before us in this appeal. Upon review,
we discern no basis to disturb the AJ's decision.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
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
__04-10-02________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The record indicates that complainant filed previous EEO complaints
alleging discrimination in violation of Title VII and the Rehabilitation
Act.
2 There is no indication in the record regarding the reason for
complainant's absences.