01a34319_r
08-22-2003
Sharon G. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon G. Thomas v. United States Postal Service
01A34319
August 22, 2003
.
Sharon G. Thomas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34319
Agency No. 4-K-230-0031-02
Hearing No. 120-2002-01642X
DECISION
The record indicates that complainant filed an appeal from the agency's
final action dated March 17, 2003, finding no discrimination with
regard to her complaint. In her complaint, dated December 31, 2001,
complainant alleged discrimination based on her race (Black), sex
(female), and age (DOB: 5/30/57) when on October 23, 2001, she was
given an indefinite suspension for an alleged off duty action. 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 complainant failed to establish a prima facie
case of discrimination. The AJ also determined that the agency, further,
articulated legitimate, nondiscriminatory reasons for its action. The AJ
indicated that the agency showed that complainant, a Distribution/Window
& Markup clerk, was given the suspension at issue because it had a
reasonable basis for believing that complainant was guilty of a crime
for which a sentence of imprisonment could be imposed. Complainant's
supervisor submitted an affidavit stating that complainant was issued the
suspension due to the Postal Inspection Service's advice that complainant
had been indicted on felony charges, 3 charges of mail fraud and 2 charges
of health care fraud, for staging auto accidents and claiming injuries
to recover insurance benefits. The AJ stated that such criminal conduct
was inconsistent with satisfying the normal requirements of complainant's
position and constituted grounds for an indefinite suspension. The AJ
also concluded that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. 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
August 22, 2003
__________________
Date