01a43896_r
09-16-2004
Emma F. Macomber, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Emma F. Macomber v. United States Postal Service
01A43896
September 16, 2004
.
Emma F. Macomber,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43896
Agency No. 4D-280-0027-01
Hearing No. 140-2002-08213xAFS
DECISION
The record indicates that complainant filed an appeal from the agency's
final action dated April 22, 2004, finding no discrimination with regard
to her complaint. In her complaint, dated April 30, 2001, complainant
alleged discrimination based on retaliation (prior EEO activity) when:
On September 1, 1999, she was informed that she would no longer qualify
as a letter carrier if her weight limit of 20-25 pounds remained
permanent;
Prior to February 24, 2000, the agency asked the OWCP to review
complainant's OWCP claim;
On an unspecified date in March 2000, she was restricted from street
duties by her postmaster;
On May 26, 2000, her supervisor refused to let her case her mail,
and management started taking away her office duties;
On June 12, 2000, she was sent for a fitness for duty exam;
On June 17, 2000, she received notification that she would be given an
office count the week of June 19, 2000;
On June 28, 2000, she was notified that her start time would be changed
to 8:30 a.m. on July 8, 2000;
On September 9, 2000, another carrier informed her that he was told to
stop writing �many pieces of mail� on PS Form 3996 because of her;
On September 18, 2000, she received a Letter of Warning for
Unsatisfactory Job Performance and Expansion of Street Time;
On October 12, 2000, she was given an investigative interview for
failure to give a proper estimate on PS Form 3996;
On October 17, 2000, she received a Letter of Warning for Overtime Usage;
On February 27, 2001, her supervisor stated, �If you file a grievance
you are an idiot;�
On March 9, 2001, her postmaster informed her that a Letter of Warning
would be rescinded;
On April 2, 2001, her request for information was denied (with exception
of 1999 route count for city route 8);
On February 25, 2003, she was advised by a Training Supervisor that
she was going to have an office inspection the next day;
On February 26, 2003, management did not follow proper procedures
and rules when administering her office inspection, and as a result,
claimant's total office time minutes were improperly documented; and
On February 26, 2003, she was counseled for defacing mail when she
wrote the reason a letter was unable to be delivered on the outside of
the envelope.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a decision
without a hearing finding no discrimination. The AJ determined that
the agency articulated a legitimate, nondiscriminatory reason for its
actions. Specifically, the AJ stated that according to the agency,
officials made comments about and conduct inquiries into complainant's
lifting restrictions due to her complaints and inability to carry the
required weight limits for Route 8. The agency restricted complainant's
street duties and office duties due to her limited duty/light duty status
which allowed her to work within her lifting restrictions. The agency
stated that complainant was scheduled for an office count per agency
regulations. Complainant's start time was changed because the agency
used a router to case her mail; thus, she did not need to come in at
the earlier time. The agency indicated that employees were told not to
write �many pieces of mail� on forms or letters and that the officials
counseled the employees if they did so. When complainant expanded her
street time and used overtime without prior approval on two occasions,
she was issued two letters of warnings which were, later, rescinded.
The agency stated that the Postmaster denied complainant's request for
information because she did not have a legal right to that information.
That agency was not aware at the time that the office inspection was
inaccurate; but, once complainant brought this accusation to management's
attention, the agency scheduled another office inspection. The AJ
stated that complainant failed to demonstrate pretext for its actions,
described above. The AJ also found that complainant failed to establish
a prima facie case of harassment on the part of management. The agency's
final action implemented the AJ's decision. Complainant makes no new
persuasive contentions on appeal.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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, 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.
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
September 16, 2004
__________________
Date