0120070572
05-14-2009
Diane Smith-Clark, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Diane Smith-Clark,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070572
Hearing No. 100200500679X
Agency No. 4K200022103
DECISION
On November 9, 2006, complainant filed an appeal from the agency's
October 23, 2006 final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., and 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(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals complainant has worked for the agency since 1973.
In 1999, complainant brought an EEO complaint against the agency due to
debilitating headaches she experienced at her facility. The complaint
settled, and complainant was set to return to the agency in May 2003.
The settlement agreement provided that complainant would work in the
lobby of the Friendship Heights Station in Washington, D.C., as a Sales
and Service Associate (Window Clerk). The settlement agreement provided,
among other things, that a sound study and on-site visit would be done
to ensure that the sound levels were not outside of complainant's
requirements as set by her neurologist. Prior to returning to the
facility, complainant's neurologist and attorneys visited the site and
found it to be suitable to complainant's needs. Further, the sound
study also revealed that the noise levels were acceptable.
In April 2003, complainant's restrictions were: (1) low noise at voice
and speech level with low-level traffic noise and no machinery noise
exposure; and (2) a high stool to lean on or sit on periodically for
relief of low back discomfort.
Before starting work as a Window Clerk, complainant was required to
undergo training for the position. Training was not available until May
12, 2003. The record reveals that complainant desired to return to work
as soon as possible. Accordingly, the agency informed complainant that
she could return on May 5, 2003.
Complainant reported to work on May 5, 2003, but was one hour late
to work. In addition, she brought with her a new restriction from
her physician: that she "may" need to work from 10:30 a.m. until
2:00 p.m. (Report of Investigation at Exhibit 5). Upon her arrival,
complainant's supervisor (S1) informed complainant that she would be
sorting mail in a small room near the window area. Complainant left
after one hour, claiming there was excessive noise from a television,
intercom, and fan. Complainant was charged with AWOL for the time she
did not work.
Complainant did not report for work on May 6, 2003, because her
restrictions had not been followed. On May 7, 2003, complainant did
not work because it was her regularly scheduled day off.
On May 8, 2003, complainant reported for work and was assigned to sort
mail in the box section, and to place the mail into mail boxes. Again,
complainant states that the noise was too loud for her, and that she
suffered from headaches. Complainant worked approximately six and a
half hours, until her supervisor told her to leave because she did not
appear well.
Complainant left work on that day and went to the Prince Georges County
Hospital, where she was diagnosed as having a stroke. Complainant was
admitted to the hospital until May 28, 2003, and was then transferred
to a rehabilitation hospital. She received inpatient and outpatient
treatment until July 2003.
On or about January 12, 2005, complainant filed an EEO complaint alleging
that she was discriminated against on the bases of disability (Head and
Hearing Injury - Stroke) and in reprisal for prior protected EEO activity
when:
1. on May 5 and May 8, 2003, she was assigned duties outside of
her medical limitations; and
2. on May 5, 2003, she was charged with being Absent Without Official
Leave.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On June 12, 2006, both parties filed respective
Summary Judgment Motions. On June 29, 2006, complainant opposed the
agency's Motion, and on July 31, 2006, the agency opposed complainant's
Motion. On September 25, 2006, the AJ granted the agency's Motion for
Summary Judgment.
In his decision, the AJ found complainant was not an individual with
a disability because she had no impairment that substantially limited
a major life activity. The AJ found complainant was assigned sorting
duties pending the beginning of her training session, as negotiated by the
parties. Furthermore, the AJ found that these duties were consistent with
her position description, and did not violate her medical restrictions.
As for her claim that the agency violated her restriction that she
only work four hours per day, the AJ found that complainant was not a
qualified individual with a disability because the position was full time.
The AJ found that complainant's supervisors were not aware of her prior
EEO activity, and there was no evidence of any inference of retaliation.
Rather, complainant was simply placed into the position which had been
negotiated for her.
As for her claim that she was discriminated against when she was issued
the AWOL charge, the AJ found that the agency agreed not to discipline
complainant for the absence. Furthermore, complainant failed to establish
that any similarly situated individual who failed to come to work as
scheduled was treated more favorably. In sum, the AJ found there was
no genuine dispute of material fact whether complainant was denied an
accommodation, or subjected to any retaliation for prior EEO activity.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
In her appeal, complainant contends, through her attorney, that the
AJ ignored the settlement agreement, and failed to find there were
disputes of material fact. Specifically, complainant contends that
the settlement agreement specifically provided that complainant would
be working in the lobby, and as such, complainant's physician and
representatives only inspected the lobby to ensure its suitability
with complainant's restrictions. Placing complainant into the sorting
position was in direct violation of the settlement agreement, and in
turn, caused complainant's stroke. Complainant also contends, despite
the AJ's finding to the contrary, that there is a dispute in the record
as to whether complainant's supervisors were aware of complainant's prior
EEO activity and restrictions at the time of her arrival at the station
on May 5, 2003. Complainant also suggests that the agency attorney,
who negotiated the settlement agreement and was also responsible for
assigning complainant to do the sorting work, retaliated against her.
Complainant maintains that she is an individual with a disability, and
that the AJ failed to draw reasonable factual inferences in her favor.
In response, the agency maintains that complainant failed to timely
contact an EEO Counselor. The agency also contends that the settlement
agreement language regarding the location of complainant's position is not
at issue because the AJ was not examining whether the agency breached the
settlement agreement. Rather, the only issue before the AJ was whether
the agency assigned complainant to duties outside of her restrictions.
The agency further contends that S1's knowledge of her EEO activity
is not material because there was no discrimination. In that regard,
the agency maintains that the AJ correctly found that complainant's
restrictions were not violated, as there were no sorter machines at the
facility, and the sound test revealed that sound levels were acceptable.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
After a careful review of the entire record, we find the AJ was correct in
issuing a decision without a hearing. For the purposes of this decision
we will assume, without deciding, that complainant's time to make EEO
contact was properly extended under the circumstances, and that she is
an individual with a disability. Furthermore, we find that at least one
person involved, the agency's former attorney, was aware of complainant's
prior EEO activity.
However, we do not find that complainant has established a genuine
dispute as to whether her medical restrictions were violated, or that
she was denied an accommodation. Complainant was assigned sorting
duties, which were consistent with her position description, for a
period of time until her Window Clerk training could begin. There is
no dispute in the record that the type of sorting machines allegedly
responsible for complainant's initial problems were not in use at the
Friendship Heights facility. Rather, complainant complains that a fan,
a radio, an intercom, and a television caused her to have headaches
which ultimately led to her stroke. However, we find that complainant
failed to establish that this noise violated her medical restrictions.
In fact, no evidence was produced that these devices produced the level
of noise which would violate complainant's restrictions. Complainant's
neurologist testified that she had no idea if these devices would be
the type to bother complainant. (Neurologist Deposition at p. 47-49).
Furthermore, complainant testified she never asked that the television and
radio be turned off or their volumes lowered. (Complainant's Deposition
at p. 29). Complainant was never assured a noise-free environment, and
a sound study confirmed that the facility was an appropriate place for
her to work. Indeed, the sound study was conducted in both the lobby
and other areas of the facility.
As for her claim that she was denied a stool, we find complainant failed
to establish that this was a disability accommodation which was requested
in order perform the essential functions of the job. Complainant
testified she has a mild back impairment due to a car accident in 1991.
Complainant's neurologist requested, after the settlement negotiations
had been completed, that complainant be provided with a stool for relief
of low back discomfort. However, there was a conflict between the
medical providers, because complainant's orthopedist testified that he
would not have limited her standing or required her to use the stool.
(Orthopedist Deposition at p. 25, 55-56). Further, complainant did
not allege disability discrimination based on a back impairment, and
did not allege that her stroke was as a result of the agency's failure
to provide a stool. The record further reveals that the agency attorney
and complainant's attorney agreed to place complainant into the position,
and continue the discussion of the stool at a later date. (See Agency
Motion for Summary Judgment at Exhibit 25).
As for complainant's request for a four-hour work day, the record
likewise reveals that complainant's attorney agreed that complainant
would only work a full-time, eight-hour schedule. (See Agency Motion
for Summary Judgment at Exhibit 25). Accordingly, we find this evidence
establishes she withdrew her request for a part-time schedule. Indeed,
the record is not clear that this was a request for an accommodation due
to a disability. Rather, it appears to be a request to alter work hours
in order to avoid peak traffic time. (Neurologist Deposition at p. 65).
Finally, as for her retaliation claims, we also find no evidence
of a retaliatory motive for placing complainant into the sorting
position pending the start of her Window Clerk training. With respect
to complainant's claim that she was charged AWOL for not arriving to
work on time, and for leaving early, we note that the agency agreed not
to issue the discipline. Furthermore, complainant failed to establish
a prima facie case of discrimination or retaliation in that she failed
to present evidence of similarly-situated individuals who were treated
more favorably under like circumstances. She also failed to present
sufficient evidence that would establish the agency's reasons for issuing
the AWOL charge were a pretext for discrimination or retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final action.
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
May 14, 2009
Date
1 The record also reveals that on August 21, 2003, complainant notified
the agency that it had breached the settlement agreement when it failed
to assign her to a Sales and Service Associate position in the lobby.
On March 26, 2004, the agency issued a final decision on the matter
finding that it had not breached the settlement agreement because
complainant worked within her medical restrictions. Complainant appealed
the decision to the Office of Federal Operations. In a decision dated
November 29, 2004, the Commission found that there was not sufficient
information in the record to make a determination. The Commission ordered
the agency to provide affidavits of individuals who could identify where
complainant worked during the days in question. See Diane Smith-Clark
v. United States Postal Service, EEOC Appeal No. 01A43273 (November 29,
2004). According to the agency, it prepared an affidavit pursuant to
the order and issued a new final decision finding no breach. We note
that complainant did not appeal that decision to the Commission.
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0120070572
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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