The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
Defendant's motion for summary judgment against plaintiff on the
merits of her claims has been granted. Accordingly, judgment is entered
against plaintiff Geneva Welbon and in favor of defendant.
IT IS SO ORDERED AND ADJUDGED. ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Now before the Court is defendant's motion for summary judgment based
on plaintiff's failure to present sufficient evidence to sustain her
claim of employment discrimination. Having considered the arguments of
plaintiff, who is appearing pro se, and defendant's counsel, the Court
hereby GRANTS defendant's motion for summary judgment.
Plaintiff Geneva Welbon began working for the United States Postal
Service ("USPS") in 1988 as a casual employee.*fn1 Decl. of Cormier, Ex.
A at 21:23-23:2. On August 19, 1997, plaintiff filed a complaint with the
Equal Employment Opportunity Commission (EEOC) alleging that defendant
United States Postal Service ("USPS") discriminated against her on the
basis of race, sex and age. Plaintiff is an African American
woman over the age of forty. In this first EEO claim, EEOC No. 1
F-946-0097-97, plaintiff alleged that discrimination occurred when she passed the
clerk carrier examination with a basic rating of 94.5 yet was never
promoted to the position of a career clerk. See Order Den.
Def.'s Mot. for Summ. J. and Granting PL Leave to Amend Compl. at
1:23-27. That claim was fully adjudicated and on May 5, 2000, the Office
of Federal Operations affirmed the Final Agency decision against
plaintiff on EEOC No. 1F-946-0097-97. Plaintiff was notified that she had
the right to file an action in Federal District Court within ninety days
of receiving the decision. Id. 2: 4-6. Plaintiff did not file an action
until September 16, 2002, some two and one half years later. Because
plaintiff did not file the action within the ninety day time
limit that is specified by 42 U.S.C.S. § 2000e-16(c), her complaint
in this Court, to the extent that it was based on her first EEO claim,
was barred by the statute of limitation. See Order Den. Def.'s
Mot. for Summ. J. and Granting PL Leave to Amend Compl.
Plaintiff's second EEO claim, EEOC No. 1F946-0021-99, alleging that
she was terminated from her position with the USPS because of her race,
sex and age, was originally filed with the EEOC on February 25, 1999. All
of plaintiff's appeals and requests for reconsideration of the EEOC's
decision in the second matter were timely. In a letter dated July 9,
2002, the EEOC issued its final decision denying plaintiff's request for
reconsideration, and plaintiff filed a complaint with this Court on
September 16, 2002, which was timely.
Defendant filed a motion for summary judgment on April 9, 2003, seeking
dismissal of all claims. At that time, the Court granted defendant's
motion with respect to claims based on plaintiff's first EEO claim, but
granted plaintiff leave to amend her complaint to allege discrimination
solely on the basis of those incidents that were the subject of her
second EEO claim. Plaintiff filed her first amended complaint on July
In her first amended complaint, plaintiff reasserted her claims that on
December 30, 1998, she was terminated without just cause from her
position as a casual processing clerk at a post office in Oakland. First
Am. Compl. at ¶ 3. Plaintiff also claimed that she was denied a "$500
gift certificate and a letter of appreciation by the Plaint [sic]
Manager" and was not given temporary employment, "for which she was
clearly qualified." Id. at ¶¶ 7 and 9.
At the time of her 1998 termination, plaintiff was 56 years old and was
allegedly "legally disabled" with post traumatic stress disorder.
Id. at ¶ 4. As a result, plaintiff now alleges in her amended complaint although it was not alleged in the either EEO
complaint that she was a qualified disabled person and claims
that defendant USPS violated her right to reasonable accommodation under
the Rehabilitation Act of 1997, thereby violating her rights under
29 C.F.R. § 1614.203. Id. at ¶ 10. Plaintiff makes two other claims
in her amended complaint that were not made in her 1999 EEO complaint.
She claims that the agency discriminated against her because of her age
in violation of the Age Discrimination Act of 1975; and that the Office
of Worker's Compensation conspired with the USPS by "purposely holding up
her mail so that she would not be able to file claim [sic] and answer
documents required by the OWCP in a timely manner, thereby putting the
plaintiff's claim for worker's compensation in jeopardy." Id. at 3:22-28
Defendant now moves this Court to grant summary judgment on plaintiff's
claims, arguing that plaintiff has not presented sufficient evidence to
support her allegations of employment discrimination and that plaintiff
has not exhausted her administrative remedies for all additional claims.
Summary judgment is proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) The moving party, however, has
no burden to negate or disprove matters on which the non moving
party will have the burden of proof at trial. The moving party need only
point out to the Court that there is an absence of evidence to support
the non moving party's case. See id. at 325.
The burden then shifts to the non moving party to "designate
`specific facts showing that there is a genuine issue for trial.'" Id. at
324 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the non
moving party must "do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Electric
Industrial Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 586(1986). "The
mere existence of a scintilla of evidence . . . will be insufficient;
there must be evidence on which the jury could reasonably find for the
[non moving party]." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986).
In deciding a motion for summary judgment, the evidence is viewed in
the light most favorable to the non moving party, and all
justifiable inferences are to be drawn in its favor. Id. at 255.
"Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury ...