01996831
02-15-2002
Carol J. Waterman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carol J. Waterman v. United States Postal Service
01996831
February 15, 2002
.
Carol J. Waterman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996831
Agency No. 4B-120-0006-99
Hearing No. 160-99-8501X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning her 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. Complainant claims she was discriminated
against on the basis of disability (Post-Traumatic Stress Disorder)
when the agency failed to transfer her to another position at another
post office in the vicinity.
For the following reasons, we AFFIRM the agency's final action.
The record reveals that during the relevant time, complainant was
employed as a Part Time Flexible Window/Distribution Clerk at the
agency's post office in Memphis, New York. Believing she was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on December 18, 1998. 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.
In so finding, the AJ concluded that complainant had successfully
established that she is a qualified individual with a disability,
and that she required a reasonable accommodation. The AJ further
concluded, however, that the agency had accommodated complainant.
In making this conclusion, the AJ found that there was no evidence
that the agency was aware of complainant's disability until she was
diagnosed with Post-Traumatic Stress Disorder (PTSD) on June 26, 1998.
Once the agency became aware of the diagnosis, the AJ noted, complainant
was offered two transfers to other post offices in the vicinity, both
of which she turned down. In May 1999, a few months after filing her
complaint, she was offered a third transfer to another post office
in the vicinity, which she eventually accepted. The AJ noted that,
under 29 C.F.R. � 1630.9 App. (2000), the agency is not required to
grant the specific accommodation requested, but rather an accommodation
that is reasonable and effective. The AJ found that, under the facts
described above, the agency's offers of accommodation were reasonable.
The agency's final action implemented the AJ's decision. From this
decision, complainant appeals.
Complainant raises similar arguments on appeal to those she raised
before the AJ. 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 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, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
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).
The agency does not contest the AJ's finding that complainant is an
individual with a disability. Accordingly, the issue of whether
complainant is within the protection of the Rehabilitation Act is
not before us. After a careful review of the record, we find that
the AJ's decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We further agree with the
AJ that complainant has not raised a genuine issue of material fact.
The AJ found that there is no evidence that the agency was aware of
complainant's disability until she was diagnosed with PTSD in June 1998.
Complainant argues that, while she did not receive a diagnosis until
June 1998, the agency had been put on notice regarding her request for
a reasonable accommodation at a much earlier date.
Complainant stated in her Investigative Affidavit that she contacted her
supervisor regarding her requests for a transfer �in late summer, early
fall� of 1995. A statement from an agency Postmaster (RMO 1: no known
disability), reveals that management officials, including the Director of
Field Operations, were made aware of complainant's desire for a transfer
certainly as early as October 1995. See EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the ADA, question and
answer 8, (March 1, 1999)(individual must let employer know s/he needs an
adjustment or change at work for a reason related to a medical condition).
While agency officials were aware of complainant's desire for a transfer,
however, there is no evidence that they were aware that such an adjustment
or change at work was for a reason related to a medical condition
While the agency was aware in October 1995 that having to work in the
presence of the male postal customer was a very painful ordeal for
complainant, the statement does not indicate that the agency was aware
that complainant had medical condition at that time. Nor does the record
contain any other evidence that the agency was aware that complainant
had a medical condition until her diagnosis in June 1998.
We further find that, once the agency did become aware of complainant's
disability, there is no evidence that the agency did not act in good
faith in an effort to accommodate complainant. Complainant contends
that another manager (RMO 2: prior disability unknown) contacted other
area managers to discourage them from offering complainant a position at
post offices nearby. She does not reveal how she knows this to be true,
nor does she allege that other evidence exists that would corroborate
her allegation.
We note that, in order to overcome a summary judgment motion, �a mere
recitation that there is a factual dispute is insufficient.� See
EEO-MD-110, 7-15. A party seeking to establish the existence of a genuine
issue of material fact must do more than merely repeat the same facts
initially raised in her formal complaint. See Patton v. United States
Postal Service, EEOC Request No. 05930055 (July 1, 1993). Complainant,
by not providing evidence that the agency knew of her medical condition
before June 1998, and by not supporting her allegations concerning RMO
2's contacts with other local post offices, failed to meet this test.
Summary judgment was therefore appropriate in this case. See Jaskoviak
v. United States Postal Service, EEOC Appeal No. 01986620 (January
8, 2001). We further note that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's disability. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final order.
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
February 15, 2002
__________________
Date