Accurzio R. Sclafani, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 13, 2000
01a00259 (E.E.O.C. Jul. 13, 2000)

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.