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WELBON v. POTTER

April 12, 2004.

GENEVA WELBON, Plaintiff;
v.
JOHN E. POTTER, United States Postmaster General, Defendant



The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

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.

  BACKGROUND

  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 31, 2003.

  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 and 6:1-7.

  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.

  LEGAL STANDARD

  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 ...


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