01a00259
07-13-2000
Accurzio R. Sclafani, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Accurzio R. Sclafani v. United States Postal Service
01A00259
July 13, 2000
Accurzio R. Sclafani, )
Complainant, )
) Appeal No. 01A00259
v. ) Agency No. 4B-020-0151-97
) Hearing No. 160-98-8565X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency action
concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleges he was discriminated against on the basis of physical
disability (chronic degenerative condition in neck) when, on June 24,
1997, while assigned to limited duty at his regularly assigned station
two and one-half hours of delivery time was added onto his route which
caused him to work beyond his medical limitations. For the following
reasons, we REVERSE and REMAND the agency's final decision.
The record reveals that during the relevant time, Complainant was
employed as a Letter Carrier, PS-5, at the agency's Back Bay Annex,
Boston facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a formal complaint on
September 17, 1997. At the conclusion of the investigation, complainant
was provided a copy of the investigative file and requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a decision
without a hearing finding no discrimination.
The record indicates that complainant started working for the agency
on September 15, 1973. In 1991, complainant sustained a neck injury
which resulted in chronic neck, left shoulder, and chest pain which
has prevented him from carrying a mail satchel hindering his ability
to delivery mail. Contrary the complainant's assertions that the agency
never accommodated his disability, the record shows that complainant has
been on limited duty since April of 1991. Complainant's limited duty
assignment restricted complainant's work assignments in the following
manner: no lifting greater than 10 pounds; no heavy pushing or pulling;
no prolonged sitting in one position; no working or reaching above
shoulder level particularly with left shoulder; and no operating of
government vehicles.
Following a route inspection in February of 1997, two and one-half
hours of delivery time was added on to complainant's delivery route.
Complainant essentially alleges that management's failure to consider
his disability during this inspection was discriminatory. Moreover,
complainant alleges that the Manager told him that he was not qualified
for the job and that the Manager would give complainant's delivery route
an addition which would force him to bid off the job. Three co-workers
signed a joint statement attesting to the Manager's statement to
complainant. Complainant asserts that management increased his number
of street deliveries and time knowing that his disability does not allow
him to use a satchel.
The AJ found that complainant's complaint constituted a claim for a
reasonable accommodation. Thereafter, the AJ summarily concluded that
because the agency did not claim that complainant could not do the work
of his limited-duty position, complainant was a qualified individual
with a disability under the aegis of the Rehabilitation Act. The
AJ then concluded that there was no prima facie case of disability
discrimination in this matter because there was no evidence with regard
to the complainant's medical restrictions relative to number of hours
of delivery. From the record, complainant's only restrictions appeared
to be relative to the amount of weight he carried. In reaching this
conclusion, the AJ noted that the complainant's own work record, which
included overtime almost every week before and after the route inspection,
negates any claim that the two and one-half additional hours violated
his medical restrictions. The agency's final action implemented the
AJ's decision. Complainant raises similar arguments on appeal to those
he raised before the agency. The agency stands on the record and requests
that we affirm its final action implementing 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. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of the
non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). In the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his
or her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171,
173 (3d Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred when he
concluded that there was no genuine issue of material fact in this case.
In finding no discrimination, the AJ relied on the representations of
management officials as provided in their statements and completely
disregarded the complainant's three witnesses attesting to the Manager's
alleged desire to force complainant off the job by increasing his
delivery route work. Moreover, the AJ relied on the record number of
hours complainant worked overtime in reaching a decision that the two
and one-half hour increase in complainant's delivery time did not violate
complainant's medical restrictions. However, the record does not indicate
whether complainant's overtime was out on street delivery or office time.
This information could alter the material facts and ultimate decision
in this case.
In summary, there are simply too many unresolved issues which require an
assessment as to the credibility of the various management officials,
co-workers, and complainant, himself. Therefore, judgment as a matter
of law for the agency should not have been granted.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission REVERSES the
agency's final action and REMANDS the matter to the agency in accordance
with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the New York District
Office for scheduling of a hearing in an expeditious manner. The agency
is directed to submit a copy of the complaint file to the EEOC Hearings
Unit within fifteen (15) calendar days of the date this decision becomes
final. The agency shall provide written notification to the Compliance
Officer at the address set forth below that the complaint file has been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge
shall issue a decision on the complaint in accordance with 29 C.F.R. �
1614.109 and the agency shall issue a final action in accordance with
29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or filed your appeal
with the Commission. 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.
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:
July 13, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.