01A30786_r
08-14-2003
Mary E. Harris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Mary E. Harris v. United States Postal Service
01A30786
August 14, 2003
.
Mary E. Harris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A30786
Agency No. 1F-957-0011�01
Hearing No. 370-A1-2426X
DECISION
Complainant timely initiated an appeal from a final order concerning
her 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.
The record reveals that complainant was formerly employed with the
agency as a distribution clerk. In a letter dated December 24, 1998,
the agency noted that complainant last reported to work on June 10, 1998,
and directed complainant to provide acceptable medical documentation to
support her continued absence from work or medical documentation stating
when she can return to work. The agency enclosed a medical release
form for complainant to submit to a treating physician that had to be
submitted to the agency's Area Medical Officer by January 11, 1999.
The letter concluded by stating that failure to provide acceptable
medical documentation could result in management removing complainant
from employment with the agency.
In a letter dated February 23, 1999, the agency notified complainant
that she would be removed from the agency on April 3, 1999 for
failure to follow instructions by failing to provide acceptable
medical documentation/absent without leave (AWOL). The agency noted
that complainant failed to provide the requested medical documentation
and therefore was charged with absent without leave beginning January
12, 1999. In a letter dated April 27, 2000, complainant requested
reinstatement to her position, but in a letter dated November 7, 2000,
the agency denied complainant's request for reinstatement. The letter
noted that complainant was removed for failure to follow instructions.
Complainant sought EEO counseling and subsequently filed a formal
complaint on January 16, 2001, alleging that the agency discriminated
against her on the bases of race (African-American), sex (female),
and disability when on November 7, 2000, it denied her request for
reinstatement.
At the conclusion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing. On December 14, 2001, the AJ issued a notice that
he was considering a decision without a hearing.
The AJ issued a decision without a hearing dated September 26, 2002,
finding no discrimination. The AJ found that the agency provided a
legitimate, non-discriminatory reason for not reinstating complainant
when it responded that she was not reinstated because the agency has
a policy of not reinstating former employees terminated "for cause."
The AJ found that complainant failed to provide any evidence that the
agency's articulated reason was pretext for unlawful discrimination.
In a final order dated October 10, 2002, the agency fully 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. 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 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 of the record, we find that the issuance of a decision
without a hearing was appropriate because complainant did not provide
evidence from which a reasonable fact-finder could conclude that she
established a prima facie case of discrimination based on race, sex,
or disability. The burden of proof in discrimination cases is generally
allocated according to the standards established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-805 (1973). Initially in disparate
treatment claims such as this, complainant must establish a prima
facie case of discrimination by demonstrating, by a preponderance of
the evidence, that she was subjected to an adverse employment action
under circumstances which, if left unexplained, raise an inference
of unlawful motivation. See Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). In this matter, complainant
alleges that a white female employee who was injured on the job was
reassigned from her floor position and given various office positions.
Complainant contends that an inference of unlawful discrimination can
be made from the agency's treatment of this employee. However, we
note that the employee offered by complainant as a comparative was not
terminated, but was accommodated after an on-the-job injury. Thus, we
find that complainant was not similarly situated to the cited employee.
Complainant did not identify any similarly situated employees outside
of her protected classes who were treated more favorably under similar
circumstances. Complainant failed to provide any other evidence from
which an inference of discrimination on the bases of sex, race, or
disability could be inferred. Accordingly, we find that complainant
failed to establish a prima facie claim of unlawful discrimination.<1>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to 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 (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
_August 14, 2003_________________
Date
1Because we find that complainant failed to
provide any evidence from which a prima facie case of discrimination
could be established, we will not address the Administrative Judge's
determination that the agency offered legitimate, non-discriminatory
reasons for its actions which were not rebutted by complainant as pretext.