01A24935
12-23-2003
Bruce D. Rodewald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Bruce D. Rodewald v. United States Postal Service
01A24935
December 23, 2003
.
Bruce D. Rodewald,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A24935
Agency No. 1I-554-0003-01
Hearing No. 260-A2-8057X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning his complaints of unlawful employment discrimination.
The appeal is accepted for de novo review pursuant to 29 C.F.R. �
1614.405(a). In the underlying complaints, complainant alleges that
he was discriminated against on the basis of disability in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq., when:
(1) Complainant's name was removed from the Volunteer Training List;
Complainant's name was removed from the Overtime Desired List; and,
In order to be allowed to work overtime, complainant was required to
work on only one type of machine, and working on this machine required
him to engage in motions beyond his medical restrictions.
Complainant also alleges that the agency violated the Equal Pay Act of
1963, as amended, 29 U.S.C. � 206(d) et seq. when:
Complainant was not paid at the same rate as a female Electronic
Technician (ET), Level 9.
For the following reasons, the Commission AFFIRMS the agency's final
action.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Maintenance Mechanic (MPE), Level 7, at the agency's Minneapolis
Main Post Office in Minneapolis, Minnesota. Complainant sought EEO
counseling and subsequently filed two formal complaints on or about
October 17, 2000, as well as one on January 29, 2001. Complainant later
amended his complaints on or about February 12, 2002, to include the
issue of denial of equal pay. 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 AJ concluded that because complainant presented insufficient
evidence that he had a specific physical or mental impairment which
substantially limited one or more major life activities as defined by
the Rehabilitation Act, complainant failed to establish a prima facie
case of disability discrimination. The AJ also found that complainant
failed to establish a prima facie case under the EPA, because he failed
to offer any evidence in support of his allegation, beyond the mere
assertion that the agency �makes no distinction as to the different duties
between a Level 7 MPE and a Level 9 ET when it comes to working on almost
every machine.� (Emphasis added). The AJ found that it was undisputed
that complainant, a Level 7 MPE, did not hold the same position as the
female employee who he alleged was paid more, as a Level 9 ET, and that
the position descriptions contained in the record demonstrated that the
positions required different levels of skill, effort, and responsibility.
Additionally, complainant stated that the duties on some machines differ.
It was also undisputed that 59 out of 61 Level 9 ET's were male.
The agency's final action implemented the AJ's decision.
On appeal, complainant contends that his impairments were not
correctly identified by the agency, which listed his impairments as
whiplash/concussion. Complainant contends that his alleged impairments
are injury to his back and right shoulder. Complainant notes that he
injured his back on March 30, 1997, and injured his right shoulder
on April 23, 1999. Complainant claims that after returning to work
following the September 7, 1999 surgery on his right shoulder, he was
regarded as having a disability by the agency and was placed in a light
duty modified job status. He asserts that although he was qualified
to perform all job assignments as an MPE, Level 7, and most of the
Level 9 ET work that was assigned to Level 7 MPE's, his restrictions
prevented him from being able to perform his core duties as an MPE.
At the conclusion of his brief on appeal, complainant again requests
a hearing before the AJ. The agency stands on the record and requests
that we affirm its final action implementing the AJ's decision.
ANALYSIS AND FINDINGS
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. 29 C.F.R. � 1614.109(g). 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's function is not
to weigh the evidence but rather to determine whether there are genuine
issues for trial. Id. at 249. 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. at 255. 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); 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, the issuance of a decision without a hearing is
not appropriate. In the context of an administrative proceeding, an AJ
may properly consider issuing a decision without a hearing only upon a
determination that the record has been adequately developed.
Rehabilitation Act
Under the Rehabilitation Act, an individual with a disability is one who:
(1) has a physical or mental impairment that substantially limits one or
more major life activities; (2) has a record of such impairment; or (3) is
regarded as having such an impairment. 29 C.F.R. � 1630.2(g). Major life
activities include, but are not limited to, caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. 29 C.F.R. � 1630.2(i). Sitting, standing, lifting, and
reaching are also recognized as major life activities. See Appendix to
Part 1630, Section 1630.2(i), Major Life Activities. An impairment is
substantially limiting when it prevents an individual from performing a
major life activity or when it significantly restricts the condition,
manner or duration under which an individual can perform a major life
activity, compared to the average person in the general population.
29 C.F.R. � 1630.2(j). The following factors should be considered
in determining whether an impairment is substantially limiting: (1)
the nature and severity of the impairment; (2) the duration or expected
duration of the impairment; and (3) the permanent or long-term impact,
or the expected permanent or long-term impact of or resulting from the
impairment. 29 C.F.R. � 1630.2(j)(2). An individual �has a record� of
an impairment if he or she has a history of, or has been misclassified as
having, a mental or physical impairment that substantially limits one or
more major life activities. See 29 C.F.R. � 1630.2(k). An individual
is �regarded as having� an impairment if he or she (1) has a physical
or mental impairment that does not substantially limit major life
activities but is treated by an agency as constituting such a limitation;
(2) has a physical or mental impairment that substantially limits major
life activities only as a result of the attitudes of others toward such
impairment; or (3) does not have a physical or mental impairment, but
is treated by an agency as having a substantially limiting impairment.
See 29 C.F.R. � 1630.2(l).
After a careful review of the record, we find that the AJ properly
issued a decision without hearing regarding complainant's claims under
the Rehabilitation Act. With respect to complainant's contention that
his impairment was incorrectly identified, we note that in Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court determined
that it is insufficient for individuals attempting to prove that they
are disabled, �to merely submit evidence of a medical diagnosis of an
impairment.� 534 U.S. 184, 198 (2002). Although the agency did identify
complainant's impairments as whiplash/concussion, and these alleged
impairments were also mentioned by the AJ, the AJ correctly identified
complainant's restrictions, and it is from these restrictions that she
correctly analyzed complainant's claims of disability discrimination under
the appropriate legal standard. Furthermore, complainant claims that he
is substantially limited in the major life activity of working.<1> To be
substantially limited in the major life activity of working, an individual
must have an impairment that significantly restricts him or her from
currently performing a class of jobs or a broad range of jobs in various
classes. 29 C.F.R. � 1630.2(j)(3). In Sutton v. United Air Lines, Inc.,
the Court emphasized that even assuming that working is a major life
activity, the complainant is required to show an inability to work in
a �broad range of jobs,� rather than a specific job. 527 U.S. 471, 492
(1999) (cited in Toyota Motor Mfg, Ky, 534 U.S. at 200). We find that
complainant failed to meet his burden of showing an inability to work in
a either a class or broad range of jobs. We conclude that no reasonable
fact finder could have found that complainant had a substantially limiting
impairment, had a record of a substantially limiting impairment or was
regarded by the agency has having a substantially limiting impairment.
Therefore, we find that the AJ properly issued a decision without a
hearing as to complaint's claims of disability discrimination. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Equal Pay Act
The United States Supreme Court articulated the requirements for
establishing a prima facie case of discrimination under the EPA in Corning
Glass Works v. Brennan. 417 U.S. 188 (1974). To establish a prima facie
case of a violation under the EPA, a complainant must show that she or
he received less pay than an individual of the opposite sex for equal
work, requiring equal skill, effort, and responsibility, under similar
working conditions within the same establishment. Sheppard v. EEOC, EEOC
Appeal No. 01A02919 (September 12, 2000), req. for reconsideration denied,
EEOC Request No. 05A10076 (August 12, 2003) (citing Corning Glass Works,
417 U.S. at 195) (other citations omitted). Once the complainant has met
this burden, an employer may avoid liability only by showing that the
difference in pay is justified under one of the four affirmative defenses
set forth in the EPA: (1) a seniority system; (2) a merit system; (3)
a system which measures earnings by quantity or quality of production
of work (also referred to as an incentive or piecework system); or, (4)
a differential based on any other factor other than sex. Id. We note
that the EPA is limited to certain sex-based differentials in wages.
The EPA does not prohibit discrimination in other aspects of employment,
even those that have compensation-related consequences, such as hiring,
firing, promotion, transfer, or other issues. Wiley v. Department of the
Treasury, EEOC Appeal No. 01972118 (June 27, 2001) (citing Schnellbaecher
v. Basking Clothing Co., 887 F.2d 124, 130 (7th Cir. 1989) (a claim of
discriminatory promotions is beyond the scope of the EPA but actionable
under Title VII)).
We find that the AJ properly issued a decision without a hearing regarding
complainant's claim that he was not paid at the same rate as female ET's,
Level 9. It is undisputed that complainant, an MPE, holds a different
position than those female employees to whom he compares himself.
The position descriptions contained in the record reveal that the
positions require different levels of skill, effort and responsibility.
ET's have a different promotion register and take different tests from
MPE's to qualify for their positions. Additionally, complainant admits
that on some machines the duties differ, and strikingly, 59 out of the 61
Level 9 ET's are male. Therefore, complainant failed to meet his burden
of establishing a prima facie case under the EPA, and we find that the
AJ's issuance of a decision without a hearing on claim 4 was appropriate.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003).
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the agency's
final action is AFFIRMED.
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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 23, 2003
__________________
Date
1 The major life activity of working should only be considered
if an individual is not substantially limited with respect to any
other major life activity. Interpretive Guidance on Title I of the
Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(j).
The inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.
29 C.F.R. � 1630.2(j)(3)(i). To be substantially limited in the major
life activity of working, one must be precluded from more than one type
of job, a specialized job or a particular job of choice. Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999).