Wanda Young, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 9, 2007
0120061021 (E.E.O.C. May. 9, 2007)

0120061021

05-09-2007

Wanda Young, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Wanda Young,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200610211

Agency No. 1-H-301-0059-042

Hearing No. 110-2005-00241X-AES

DECISION

Complainant filed an appeal from the agency's final action dated October

25, 2005, finding no discrimination with regard to her complaint. In her

complaint, dated November 9, 2004, complainant, a Mail Processing Clerk

at the agency's Atlanta Processing and Distribution Center, alleged

discrimination based on disability (perceived/on-the-job injury) and

in reprisal for prior EEO activity when on August 12, 2004, she was

reassigned from her limited duty assignment after complaining about

being treated more severely than other employees.

Upon completion of the investigation of the complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On

September 27, 2005, the AJ issued a decision, without holding a hearing,

incorporating the agency's motion for such, 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. The AJ determined that,

assuming arguendo that complainant had established a prima facie case of

discrimination, the agency articulated a legitimate, nondiscriminatory

reason for the alleged reassignment. Complainant's supervisor stated

that she moved complainant from her hand stamp table (in the Manual

Letters Section) to another hand stamp table (in the Box Section)

solely due to complainant's work habits. Specifically, the supervisor

indicated that complainant spent a great deal of her time talking instead

of working in her former location and her decision to move complainant

was to increase her efficiency and the overall productionve of the

operation. The supervisor stated that "[complainant] rarely worked.

She would sit there and talk for 8 hours." Complainant does not

dispute the supervisor's statement. The supervisor also stated that

this reassignment did not change complainant's working conditions, i.e.,

she performed the exact same tasks for the same supervisor; she worked

the same hours; and she was working under the same physical restrictions.

The record indicates that complainant's restrictions were: limit walking

to 1/2 hour per day; no standing and reaching, and reaching above shoulder

not over 15 minutes per day; no twisting, pushing, pulling, lifting,

and squatting; kneeling and climbing not over 10 minutes per day; and

sitting should be in an armchair. Complainant provides no evidence that

the reassignment violated her restrictions. In fact, the agency stated

that "[a]t no time does [c]omplainant even suggest that the change between

hand stamp tables has caused any negative change in her circumstances."

On appeal, complainant raises, for the first time, a new claim that

complainant suffers from migraine headaches since she was hired by the

agency in 1994, and this condition prohibits her from working in noisy

work areas. Complainant did not raise this issue in her complaint or

during the investigation. Therefore, this claim regarding a reasonable

accommodation is not properly an issue in this appeal. After a review

of the record, the Commission finds, assuming (without deciding)

that complainant was an individual with a disability, that there is no

indication that the agency action was motivated by any discriminatory

animus. Accordingly, the agency's final action is AFFIRMED.

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

May 9, 2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

2 The record indicates that during the pendency of hearing, the instant

complaint was also referred to as Agency No. 1-H-301-0057-04.

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0120061021

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036