01A32626
07-29-2004
Alvin Suarez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Alvin Suarez v. United States Postal Service
01A32626
July 29, 2004
.
Alvin Suarez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A32626
Agency No. 1G-761-0030-00
Hearing No. 310-A2-5514X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission VACATES the agency's final
order, and REMANDS the complaint for further processing by an EEOC
Administrative Judge (AJ).
The record reveals that on or about August 30, 1999, complainant received
a letter from the agency's Plant Manager (P1) at the Amarillo, Texas
facility, concerning his application for a Flat Sorter Machine Operator
position. The letter states, in pertinent part: �You have been found
medically unsuitable for the position of Flat Sorter Machine Operator
. . . A review of your medical records and evaluation by our Medical
Officer revealed that you have a high risk assessment and no accommodation
would lessen risk of injury or aggravation of condition on your back.
This condition is not compatible with the strenuous activities required
for this position, which includes heavy lifting, pushing, pulling,
repetitive stretching and reaching. Under these conditions, postal
employment would place your personal health and safety in jeopardy.�
P1's letter was based on the medical evaluation of complainant,
in which the Medical Provider specified that �[t]he position of Flat
Sorting Machine Operator requires that an applicant be able to perform
arduous tasks that include an essential function to lift 70 pounds.
[Complainant] is restricted to lifting no more than 50 pounds.� By
letter dated October 18, 1999, P1 stated in response to complainant's
request for reconsideration, that the earlier decision remains unchanged,
and that complainant's name would be removed from the active Flat Sorter
Machine Operator register of eligibles. Believing that the agency's
actions were discriminatory, complainant filed a formal EEO complaint on
February 9, 2000, alleging that the agency had discriminated against him
on the basis of his disability when the agency upheld its prior decision
denying him employment as a Flat Sorter Machine Operator because of a
medical disqualification.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination, and noting that the record was devoid of any
genuine issues of material fact. The AJ found that complainant had failed
to establish a prima facie case of discrimination because complainant was
not an individual with a disability based on his fifty (50) pound weight
limitation. The AJ also dismissed complainant's contention that he was
regarded as substantially limited in the major life activity of working in
a broad class of jobs requiring heavy lifting, noting that the record did
not indicate that complainant was disqualified from any position beside
the Flat Sorter Machine Operator position. The AJ further found that the
agency had articulated a legitimate, nondiscriminatory reason for its
action; namely, the Flat Sorter Machine Operator job requires lifting
seventy (70) pounds, a task which complainant was unable to perform.
The AJ concluded that complainant failed to establish by a preponderance
of the evidence, that disability-based animus motivated the challenged
action. In its final order, the agency implemented the AJ's decision.
On appeal, complainant contends that the record contains genuine issues of
material fact in dispute. Complainant contends that he was regarded as
disabled in that the agency regarded him as substantially limited in the
major life activity of working in a broad class of jobs involving heavy
lifting. Complainant also denies that heavy lifting is an essential
job function, noting that the job description does not mention any
lifting requirement. The agency requests that we affirm its final order.
As this is an appeal from an agency decision issued without a
hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is
subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
The Commission's regulations allow an AJ to issue a decision without a
hearing when he 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
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 does not
sit as a fact finder. Id. 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. A disputed 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. If a case can only be resolved by
weighing conflicting evidence, a hearing is required. In the context of
an administrative proceeding under Title VII, an AJ may properly consider
issuing a decision without a hearing only upon a determination that the
record has been adequately developed for such disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
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). "Truncation of this process, while material facts are still
in dispute and the credibility of witnesses is still ripe for challenge,
improperly deprives complainant of a full and fair investigation of
her claims." Mi S. Bang v. United States Postal Service, EEOC Appeal
No. 01961575 (March 26, 1998); see also Peavley v. United States Postal
Service, EEOC Request No. 05950628 (October 31, 1996); Chronister
v. United States Postal Service, EEOC Request No. 05940578 (April
23, 1995). The hearing process is intended to be an extension of the
investigative process, designed to "ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses." See EEOC Management Directive
(MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. �
1614.109(d) and (e).
Here, there are genuine issues of material fact in dispute. First,
there is a dispute regarding whether complainant is an individual with a
disability within the meaning of the Rehabilitation Act. An "individual
with a disability" is one who: (1) has a physical or mental impairment
that substantially limits one or more of the major life activities of
such individual; (2) has a record of such impairment; or (3) is regarded
as having such an impairment. EEOC Regulation 29 C.F.R. � 1630.2(g).
Major life activities include, but are not limited to, "functions
such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." EEOC Regulation 29
C.F.R. � 1630.2(i). The Interpretive Guidance to the regulations further
notes that "other major life activities include, but are not limited to,
sitting, standing, lifting, [and] reaching." 29 C.F.R. Part 1630 Appendix
1630.2(i). Complainant contends that he satisfies criterion (3), because
he was regarded by the agency officials as being substantially limited
in the major life activity of working in a broad class of jobs requiring
heavy lifting. In his response to the AJ's Notice of Intent to Issue
a Decision Without a Hearing, complainant addressed the AJ's finding
that the record is devoid of evidence that he was precluded from any job
other than the one in question. Complainant points to the agency medical
officer's statement that he was �unable to safely perform the essential
functions of this craft [emphasis added].� Report of Investigation
(ROI), Ex. 2, at 1. Complainant notes that based on that statement,
he is precluded from other positions in the clerk craft, such as the
distribution clerk position, the carrier position, and the mail handler
position. Instead of acknowledging the dispute in the record regarding
whether complainant was precluded from working in a broad class of jobs,
the AJ determined that there was insufficient evidence from which to
conclude that complainant was disqualified from a wide class of heavy
lifting jobs because �[a]s an example, there might exist heavy lifting
jobs (seventy pounds or greater) that permit the use of equipment or
assistants.� AJ Decision, at 8. As such, the AJ failed to view the
evidence in the light most favorable to complainant.
In the following EEOC decisions, employees were found to be regarded
as substantially limited in the major life activity of working in
a broad class of jobs: Perez v. United States Postal Service, EEOC
Appeal No. 07A20117 (July 23, 2003) (complainant was regarded as having
an impairment which substantially limited his ability to work in a
broad range of jobs in various classes requiring non-sedentary work);
Asuncion v. United States Postal Service, EEOC Appeal No. 01993435
(August 27, 2002) (complainant was regarded as having an impairment
which substantially limited his ability to work in a broad range of
custodial or cleaner jobs); McManaway v. United States Postal Service,
EEOC Appeal No.01993233 (August 27, 2002) (complainant was regarded as
having an impairment which substantially limited his ability to work
in a broad range of jobs in various classes requiring heavy lifting,
continuous standing, pushing, pulling, bending and reaching); De Los
Santos v. United States Postal Service, EEOC Appeal No. 01974430
(May 23, 2001) (complainant was regarded as having an impairment
which substantially limited her ability to work in a broad range of
jobs in various classes requiring heavy lifting, pushing, pulling,
repetitive stretching, reaching and bending, prolonged standing, and
time restraints); see also DeVaughn v. United States Postal Service,
EEOC Appeal No. 01993070 (July 30, 2002) (complainant was regarded as
having feet and hand impairments which substantially limited his ability
to work in a broad range of jobs in various classes).
We also discern a disputed genuine issue of material fact as to whether
heavy lifting (defined by the agency as lifting more than 50 pounds) is
an essential job function of the Flat Sorting Machine Operator position.
The agency contends that it is an essential job function, however,
complainant disputes this, and contends that it is an artificial barrier
erected to ensure that complainant would not be employed. Complainant
points out that the job description for the Flat Sorting Machine Operator
makes no mention of any lifting requirement at all. Complainant notes
that when lifting is a requirement for a position, it is usually mentioned
in the vacancy announcement, such as with the distribution clerk position,
the carrier position, and the mail handler position. A decision without
a hearing was improper as there are several disputed material facts.
These issues must be resolved in order to determine whether the agency
unlawfully discriminated against complainant, as alleged.
In light of these disputed issues of material fact on the instant record,
issuance of a decision without a hearing was not warranted under 29
C.F.R. � 1614.109(g). Therefore, the Commission VACATES the agency's
final order and REMANDS the matter for a hearing in accordance with this
decision and the ORDER below.
ORDER (E0900)
The agency shall submit to the Hearings Unit of the Dallas District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. 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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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 29, 2004
_____________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations