0120092755
11-18-2009
Anthony Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092755
Agency No. 1A-113-0011-08
Hearing No. 520-2008-04029X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 20, 2009 final action concerning an
equal employment opportunity (EEO) complaint claiming 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 record reflects the following series of events preceding complainant's
pursuit of the EEO complaint process. By letter dated December 7, 2008,
complainant's doctor (D1) stated that complainant was experiencing severe
pain in his right knee and would require arthroscopic surgery. D1 also
stated that complainant would be unable to work for approximately four to
six weeks because of this condition. On December 13, 2007, complainant
underwent arthroscopic surgery on his right knee. The record reflects
that in a letter dated January 15, 2008, D1 stated that complainant was
unable to return to work because of his knee condition and was undergoing
post-operative therapy to regain a satisfactory range of motion in his
right knee. On February 4, 2008, D1 re-assessed complainant's range of
motion and determined that complainant could return to work if he were
able to avoid standing for long periods of time, walking long distances
or climbing stairs. D1 acknowledged that complainant could physically
perform the duties of a "sitting down desk job."
On February 5, 2008, the Light Duty Coordinator (C1) acknowledged
the medical unit's determination that complainant was unable to stand
for long periods of time, walk long distances or climb stairs, but
was nevertheless able to perform the duties of a "sitting down desk
job." The record reflects that C1 granted complainant the temporary
assignment of manually casing mail for six hours each day, instead of
complainant's usual position of mail processor for eight hours each day.
The record reflects that the Manager, Distribution Operations (MDO)
approved complainant's light duty assignment for a thirty-day period,
concluding on March 5, 2008.
On April 4, 2008, complainant filed the instant formal complaint.
Therein, complainant claimed that he was the victim of unlawful employment
discrimination on the basis of disability (knee) when:
on or about February 5, 2008, due to his medical restrictions, his work
schedule was changed and he was not provided with eight (8) hours of
work on light duty.
Following the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). On May 1, 2009, the AJ issued a
decision by summary judgment in favor of the agency. On May 20, 2009,
the agency fully implemented the AJ's decision in its final action.
The AJ found that complainant was not a qualified individual with a
disability within the meaning of the Rehabilitation Act and that he was
not regarded as having such an impairment.1 Moreover, the AJ determined
that the agency articulated legitimate, nondiscriminatory reasons for
only providing six hours of work per day, based on complainant's limiting
medical restrictions and the light duty work available for Mail Processing
Clerks due to the mail volume.
MDO stated that on February 5, 2008, complainant was placed on light
duty assignment "per his request and based on his medical documentation."
Specifically, MDO stated that in his light duty assignment, complainant
"was not required to stand long periods of time, or walk long distances,
and he had no climbing up and down stairs. He was permitted to work
while sitting at a desk job." MDO also stated that complainant's work
hours were changed from eight hours to six hours "because of the volume of
mail." MDO stated that complainant's light duty assignment was temporary
and "typically temporary light duty positions are for about thirty days,
however, he returned to his regular bid assignment on March 13, 2008."
Upon review of the record, we conclude that the issuance of a decision
without a hearing was appropriate because there are no material
facts in genuine dispute. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). A fact is "material" if it has the potential to
affect the outcome of the case. An 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).
The record establishes that the agency granted complainant's request for
a light duty assignment (manually casing mail) for about six weeks while
he was recovering from knee surgery. The number of hours provided per
day was based on the available mail volume. While complainant asserts
that other employees casing mail were provided eight hours of work a day
rather than six, there is no evidence that these employees were working
outside their bid position on temporary light duty. Complainant has
offered no persuasive arguments on appeal regarding the AJ's decision
to issue a decision without a hearing, or regarding the AJ's findings
on the merits that no discrimination was proven in this matter.
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final action, because the Administrative Judge's issuance of a decision
without a hearing was appropriate and a preponderance of the record
evidence does not establish that unlawful discrimination occurred
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 18, 2009
__________________
Date
1 For purposes of analysis only, and without so finding, the Commission
presumes that complainant is an individual with a disability within the
meaning of the Rehabilitation Act.
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0120092755
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092755