01-2007-2556_McMillen_recirculation_edits
02-27-2009
Donald E. McMillen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Northeast Area), Agency.
Donald E. McMillen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120072556
Hearing No. 520-2007-00050X
Agency No. 1B022000206
DECISION
On May 3, 2007, complainant filed an appeal from the agency's March
28, 2007 final order concerning his equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
ISSUES PRESENTED
On July 12, 2006, complainant filed an EEO complaint alleging that
he was discriminated against, in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., on the
bases of disability (back injury) and in reprisal for prior protected EEO
activity when upon his return to work on April 22, 2006, after incurring
a work-related injury on March 24, 2006, his duties were effectively
abolished because he was not provided the appropriate vehicle to drive.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Ramp
Clerk. In 1998, complainant suffered an on-the-job injury and underwent
surgery. When complainant returned to work he performed his position of
Ramp Clerk with limited duties that excluded heavy lifting. On December
1, 2005, he was offered a limited duty job assignment that included some
duties of Ramp Clerk, Inbound Transfer Clerk and Express Mail Clerk.
Complainant was not required to lift over 35 pounds. Complainant's only
medical restriction since 1999 has been no lifting over 35 pounds.
Complainant testified in his deposition that the Ramp Clerks were
originally located at Logan Airport but in January 2006, the airport
facility was closed and all the Ramp Clerks were reassigned to the
McClellan Highway Facility and later, in March 2006, to the Boston
General Mail Facility (GMF). All Ramp Clerks were required to drive
1.5 ton trucks.
Complainant took leave from March 24, 2006 through April 22, 2006 claiming
that driving a 1.5 ton truck aggravated his back injury. On March 28,
2006, complainant's treating physician (P1) advised the agency that
complainant must drive "a sedan with a multi-positional seat." On April
18, 2006, P1 advised the agency that complainant could return to work,
but required a sedan with a multi-positional seat prior to June 1, 2006.
Complainant returned to work, but was offered a limited duty assignment
in standby status because there was no productive work available within
his restrictions.
Complainant testified that during the period that he was on standby status
he remained in the building for six hours per day and was paid for those
hours. Complainant remained on standby status until September 6, 2007.
On such date, the agency notified complainant that GMF was allotted
an additional parking space for a sedan that met his restrictions.
Accordingly, as of September 6, 2007, complainant was able to work on
a full-time schedule.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On February 16, 2007, the agency filed a Motion for
a Decision without a Hearing. Complainant failed to file an objection to
that motion. On March 16, 2007, the AJ issued an Order Entering Judgment
in Favor of the Agency. The agency subsequently issued a final order
adopting the AJ's decision.1
AJ'S DECISION
The AJ concluded that complainant failed to raise a genuine issue
of material fact on the issue of whether he is an individual with a
disability within the meaning of the Rehabilitation Act. Specifically,
the AJ concluded that complainant failed to provide any information to
support the finding that his back condition substantially limits any
major life activity.
With respect to complainant's reprisal claim, the AJ noted that the
undisputed record shows that complainant engaged in prior EEO activity,
having filed an EEO complaint in which a decision was issued in 2002.
However, the AJ concluded that complainant's reliance solely on
the temporal proximity between his prior protected activity and the
discriminatory action alleged in this EEO complaint fails to establish
the required causal nexus between such events.
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).
Disability Claim
In order to establish a prima facie case of disability discrimination,
complainant must establish that he is a qualified individual with a
disability. See Sims v. United States Postal Service, EEOC Petition
No. 03A00033 (Feb. 25, 2000); 29 C.F.R. � 1630.4 (prohibiting
discrimination against qualified individuals with disabilities).
A "qualified" individual with a disability satisfies the requisite skills
and experiences for the job, and is capable of performing the essential
functions of the position with or without reasonable accommodation. See
29 C.F.R. � 1630.2(m). To prove a prima facie case, complainant also
must show that the agency took adverse action against him or failed to
provide a reasonable accommodation, and must demonstrate that a causal
relationship exists between the agency's reasons for its actions,
and complainant's disability. See Moore v. Department of the Army,
EEOC Request No. 05960093 (October 16, 1998).
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activity;
(2) has record of such impairment; or (3) is regarded as having such
impairment. See 29 C.F.R. � 1630.2(g) (1)-(3). A physical impairment
includes any physiological disorder affecting, inter alia, neurological,
musculoskeletal, and/or endocrine systems. See 29 C.F.R. � 1630.2(h)(1).
The impairment must substantially limit complainant, or significantly
restrict him as to the condition, manner, or duration under which
he performs a particular major life activity as compared with the
performance of the average person in the general population. See 29
C.F.R. � 1630.2(j)(1)(ii). Determinations regarding whether a complainant
is an individual with a disability must be made on a case-by-case basis.
See Bragdon v. Abbott, 524 U.S. 624, 641-642 (1998). In determining
whether complainant suffers a substantial limitation to a major life
activity, the Commission must consider the nature and severity of
the impairment, the duration or expected duration of the impairment,
and the permanent or long-term impact resulting from the impairment.
29 C.F.R. � 1630.2(j)(2)(i)-(iii).
Complainant testified that his back sometimes hurts when he is walking and
that he has a 35-45 pound lifting restriction. Complainant also testified
that he doesn't do "any extravagant things," such as digging ditches
around his house, cleaning gutters, and trimming trees. The medical
documentation submitted by complainant lists complainant's physical
restriction as a 35-pound lifting restriction and the need to use an
ergonomic vehicle when driving.
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. Based on the above facts, we find that complainant's back
injury did not rise to the level of a disability for purposes of the
Rehabilitation Act.
Reprisal Claim
Claimed retaliatory actions which can be challenged are not restricted
to those which affect a term or condition of employment. EEOC Compliance
Manual Section 8, No. 915.003 (May 20, 1998), at 8- 15; Burlington No. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2412-2413 (2006).
The Commission's policy on retaliation prohibits any adverse treatment
that is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in a protected activity.
See EEOC Compliance Manual Section 8, "Retaliation" No.915.003 at pp. 8-13
(May 20, 1998).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
We agree with the AJ in concluding that adverse treatment occurring
four years after the protected activity is insufficient, by itself,
to establish the causal connection required to establish a prima facie
case of reprisal. See Clark County School Dist. v. Breeden, 532 U.S. 268
(2001) (noting that "cases that accept mere temporal proximity between
an employer's knowledge of protected activity and an adverse employment
action as sufficient evidence of causality to establish a prima facie
case uniformly hold that the temporal proximity must be "very close,"
and concluding that action taken "20 months later suggests, by itself,
no causality at all").
CONCLUSION
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 order,
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 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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
February 27, 2009
Date
1 Complainant did not submit any appeal brief or otherwise explain the
basis for his appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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