0120073956-Futrell
01-12-2010
Geraldine Futrell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Geraldine Futrell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073956
Hearing No. 230-2005-00112X
Agency No. 1J-483-0036-03
DECISION
On September 14, 2007, complainant filed an appeal from the agency's
August 10, 2007 final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
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(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Manager, Distribution Operations, at the Detroit Production &
Distribution Center in Detroit, Michigan.
On August 27, 2004, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of disability (high blood pressure)
when: (1) on December 12, 2002, she was charged with one day of Absent
without Official Leave (AWOL); and (2) from December 11, 2002 through
January 2003 her tour of duty was changed several times.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. After both parties submitted motions for a decision
without a hearing, the AJ assigned to the case granted the Agency's
February 28, 2006 motion for a decision without a hearing. On July 25,
2007, the AJ issued a decision without a hearing finding that complainant
failed to establish a prima facie case of disability discrimination.
Specifically, the AJ found that the facts and the law do not support
a finding that complainant meets the legal definition of an individual
with a disability as defined by the Rehabilitation Act.
In its Final Action dated August 10, 2007, the agency adopted the AJ's
decision finding no discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant contends that on December 12, 2002, she called
to request to be excused due to her health and health of her father.
Complainant argues that her father was "fighting for his life on Life
Support." Complainant further argues that S1 knew she had an excellent
attendance record, but placed her on AWOL.
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.
In analyzing a disparate treatment claim under the Rehabilitation
Act, where the agency denies that its decisions were motivated
by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman
v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) she is an
"individual with a disability"; (2) she is "qualified" for the position
held or desired; (3) he was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). The burden of production then shifts to the agency
to articulate a legitimate, non-discriminatory reason for the adverse
employment action. In order to satisfy his burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
For purposes of this analysis, we will assume without finding that
complainant was a qualified individual with a disability within the
meaning of the Rehabilitation Act. We will also assume that complainant
established the elements of her prima facie case of discrimination.
In this case the evidence is insufficient to show a genuine dispute of
material fact as to the agency's stated reasons for its actions. The
agency placed complainant in an AWOL status because she did not report
to work. The record reveals that on December 11, 2002, complainant was
assigned to work on Tour 1 and scheduled to work at 11:30 pm. Complainant
did not report as scheduled on December 12, 2002. Instead, on December
13, 2002 complainant called her supervisor (S1) requesting to be excused
for the remainder of her shift. S1 informed complainant that he could not
excuse her for the rest of the shift because the shift was under-staffed.
Complainant never reported to work; nor did she call back to inform S1
that she would not be coming in at all. The record also reveals that
the next night, S1 asked complainant to provide documentation from her
doctor, and told her that if it was provided, he would remove the AWOL.
Complainant refused to provide the documentation. The record further
reveals that complainant was not disciplined as a result of the AWOL,
and the record is devoid of any evidence that she lost any pay or benefits
that day.
The record also reveals that in December 2002, management reassigned
complainant from Tour 2 to manage Tour 1 Flat Sorter Operation because
management believed that complainant had the skills to help the Tour
1 operation. Complainant had graduated from the Advanced Leadership
Program. Complainant agreed to the switch. However, as it turned out,
the Tour 1 operation under complainant's supervision continued to decline.
Therefore, by late January 2003, management reassigned complainant to Tour
3 because Tour 3 was less stressful than Tour 1 and management thought
that complainant would function better in such an environment. The record
shows that such reassignments were routine, periodic, and accomplished
across the board with all supervisory employees such as complainant.
We find that complainant failed to raise a genuine issue of material
fact concerning her allegation that the agency treated her differently
because of her alleged disability.
CONCLUSION
We AFFIRM the agency's final order, 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
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 12, 2010
__________________
Date
2
0120073956
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120073956