0120070233
04-16-2009
Leonor Hernandez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leonor Hernandez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070233
Hearing No. 210-2005-00395X
Agency No. 1J-612-0009-05
DECISION
Complainant filed an appeal from the agency's final action dated September
13, 2006, finding no discrimination with regard to her complaint.
In her complaint, complainant alleged discrimination based on disability
(rotator cuff) and in reprisal for prior EEO activity when: (1) on
April 1, 2005, she was given a bad evaluation; (2) on April 11, 2005,
she was told to clock out and sent home while working overtime; and (3)
since September 20, 2003, she was subjected to harassment.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On
September 8, 2006, the AJ issued a decision without holding a hearing,
finding no discrimination. The agency's final action implemented the
AJ's decision.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged incidents. The record indicates
that on April 17, 1982, complainant began employment as full-time regular
clerk at the agency's O'Hare AMC facility. In October 1996, complainant
suffered an on the job injury and from 1997 through 2001, had several
surgeries to both her shoulders. Subsequently, complainant applied,
was approved, and then declined disability retirement. On September 20,
2003, complainant was re-employed by the agency and was assigned to a
limited job offer on Tour 1 within her restriction allowing her to take
15 minute breaks every two hours.
With regard to claim (1), complainant claimed that her supervisor gave
her a bad 2nd quarter evaluation, i.e., "0" point for her performance,
on April 1, 2005. The record indicates that the quarterly evaluation
consisted of employees' attendance (25 points), safety (25 points),
and performance (50 points). Despite complainant's claim, the record
indicates that she was not issued the 2nd quarter evaluation on April
1, 2005, rather on April 6, 2005. Also, undisputed by complainant,
she received 40 points for her performance resulting in her receiving
"65" total points for her 2nd quarter evaluation.
With regard to claim (2), complainant claimed that she reported to work
on her scheduled day off because she was on the overtime desired list.
Complainant's supervisor indicated that before complainant did any work
on the alleged incident date, she told complainant that no overtime work
was available for her within her restrictions. The supervisor stated
that only certain units on that day were called for overtime which did
not include the duties complainant could perform as identified in her
restrictions.
With regard to claim (3), complainant claimed harassment since she
returned to work in September 2003. She raised various incidents
concerning her leave requests and working conditions. The agency stated
and complainant does not dispute that the last alleged incident of
harassment, other than claims (1) and (2), discussed above, occurred
on August 31, 2004. Complainant did not contact an EEO Counselor
regarding these incidents until April 6, 2005, which was beyond the
45-day time limit set by the regulations. Even if the harassment claim
was timely raised with an EEO Counselor, we find that complainant has
failed to show that any allegedly harassing agency action was motivated
by discrimination.
Upon review, we find that complainant failed to rebut the agency's
legitimate, nondiscriminatory reasons for claims (1) and (2).
Furthermore, assuming (without deciding) that complainant was an
individual with a disability, we find that complainant failed to show
that she was denied a reasonable accommodation or that any agency actions
were motivated by discrimination. Complainant does not allege that she
was required to perform her duties beyond her medical restrictions.
Accordingly, the agency's final action is AFFIRMED.
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
4/16/09
__________________
Date
2
0120070233
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013