0120054585
04-18-2007
Evon Ridley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 01200545851
Hearing No. 120-A4-0561X
Agency No. 1K-234-0058-03
DECISION
On June 15, 2005, complainant filed an appeal from the agency's May
4, 2005 final order concerning her 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 for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant was a
Mail Processing Clerk, PS-5, at the agency's Processing and Distribution
Center in Norfolk, Virginia. On May 30, 2003, complainant contacted an
EEO Counselor, and subsequently filed a formal EEO complaint on August
2, 2003 alleging that she was discriminated against on the basis of
her disability when, during 2003, the agency denied her reasonable
accommodation request to be transferred from Tour 3 to Tour 2.2
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. Over complainant's objections, the AJ assigned
to the case granted the agency's April 28, 2004 motion for a decision
without a hearing and issued a decision without a hearing on May 2,
2005, finding no discrimination.
In his decision, the AJ found the following: complainant has suffered
from glaucoma and recurrent iritis (afflictions that affect vision)
since June 15, 1998. Initially, complainant requested a change from
Tour 13 to Tour 2 as a reasonable accommodation, on the basis that she
required routine eye drop administration. The agency denied the request,
allegedly because of insufficient medical documentation. Complainant
subsequently provided additional medical documentation, and on June 7,
1999, requested a light duty assignment and a schedule change to Tour 2.
On June 17, 1999, the agency approved the light duty request for 30
days, with the probability of renewal every 30 days. The agency denied
complainant's request to change to Tour 2, but offered her a change to
Tour 3. Complainant chose to remain on Tour 1. Complainant was granted
light duty for the specific period of August 10, 1999 through September
10, 1999, with the ability to renew every 30 days.
The AJ further found the following: on September 24, 1999, complainant
again requested a change to Tour 2 for a different reason; namely,
her eye condition precluded her from driving in the dark. In response
to the request, the agency examined her for fitness for duty, and then
granted her request. Specifically, on February 19, 2000, complainant
was assigned to light duty4 on Tour 2 so that she could commute during
daylight hours. The assignment to Tour 2 was authorized to last until
May 18, 2003, however, on January 7, 2003, the Manager of Distribution
Operations on Tour 2 removed all manual operations from Tour 2, including
complainant's temporary light duty assignment. Effective January 18,
2003, those manual operations scheduled on Tour 2 were reassigned to Tours
1 and 3, allegedly for reasons related to operational efficiency. At that
point, complainant again requested reassignment to Tour 2 as a reasonable
accommodation because she could not safely drive at night. The agency
did not grant complainant's request to work on Tour 2. The Reasonable
Accommodation Committee convened and searched for any vacant, funded
positions available within the area in which complainant was willing
to commute, 30 miles. Complainant rejected all options within the 30
mile radius that she herself had set, and ultimately, the Committee was
unable to find any agreeable opportunities for complainant. The members
of the Reasonable Accommodation Committee also asked complainant if she
would like them to look into public transportation for her however,
complainant did not accept this offer. Complainant then requested
assignment to temporary light duty on Tour 3, and this was approved.
The AJ assumed without deciding, that complainant was an individual
with a disability under the Rehabilitation Act. He further found that
complainant was not a "qualified" individual with a disability. The AJ
found that complainant could not perform the essential functions of her
bid position, and has failed to identify any vacant, funded positions
anywhere in the agency which she could have filled. The AJ noted that the
agency had no obligation to offer complainant anything other than vacant,
funded positions. The AJ then concluded that viewing the evidence in
the light most favorable to complainant, the agency cannot be found to
have violated the Rehabilitation Act. 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.
On appeal, complainant's principal contention is that the AJ erred in
determining that complainant's reasonable accommodation request was to
be assigned to a vacant, unfunded position. Complainant explains that
what she requested was a schedule change as a reasonable accommodation
and not a change in her job duties. Complainant also requests that
the Commission accept new evidence in the form of photographs which
allegedly show that due to the agency's decision to move complainant's
duties off of Tour 2, mail is backlogged. Complainant also requests
that the Commission consider "new and material evidence", in the form
of emails between the MDO and a Labor Relations Specialist regarding the
decision to move manual operations off of Tour 2, as well as the impact
on light and limited duty employees. Complainant contends that these
emails illustrate that limited and light duty employees were discriminated
against when they were intentionally targeted to be moved to Tour 3.5
In its Opposition brief, the agency contends that complainant ignores
the fact that the work for which she sought a schedule change was a light
duty assignment, not a funded position. The agency argues that it was not
obligated to continue to provide light duty on any Tour to complainant.
The agency further argues that even assuming arguendo that light duty
work were deemed a permanent funded position, which it is not, those
NIXIE duties no longer exist on Tour 2. Therefore, to assign complainant
light duty on Tour 2 would impose an undue hardship on the agency since
mail would be delivered later than necessary and outside the agency's
standard service commitments.
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. In this case,
a decision without a hearing was appropriate.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and
(p). Initially, we note that the agency does not have to bump an employee
from a job in order to create a vacancy; nor does it have to create a
new position. See EEOC Enforcement Guidance ("Guidance") on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, No. 915.002, at Question 24 (rev. October 17, 2002). An agency
also is not required to provide the specific accommodation requested but,
rather, may choose among reasonable accommodations as long as the chosen
accommodation is effective.6 See Guidance, at Question 9. As part of
the interactive process, an agency may offer alternative suggestions for
reasonable accommodations and discuss their effectiveness in removing the
workplace barrier that is impeding the individual with a disability. Id.
Initially, we find that there is no dispute that complainant could not
perform the essential functions of her bid position.7 Complainant could
perform the light duty assignment the agency offered her. However, in
January 2003 the agency had moved the light duty assignment off Tour 2.
The light duty assignment was available on Tours 1 and 3. We find that
complainant's request for a shift change in order to remain working Tour
2 would not have been an effective accommodation because there was no
longer any light duty work available on Tour 2. The agency made an
effort to identify other accommodations for complainant however, she
rejected the overtures. Under these circumstances, we decline to find
a violation of the Rehabilitation Act.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, 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
April 18, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Tour 3 is considered an evening shift, with hours of approximately 2:30
p.m. to 11:00 p.m. Tour 2 is considered a day shift, with approximate
hours of 6:00 a.m. to 2:30 p.m. See Report of Investigation (ROI),
Affidavit F, at 4.
3 Tour 1 is considered the late shift, with hours of approximately 10:30
p.m. to 6:00 a.m. See ROI, Affidavit F, at 4.
4 The AJ noted that complainant's light duty assignment was unofficially
called NIXIE mail. He stated that the record shows that NIXIE mail
is the manual process of completing partial addresses and repairing
damaged mail.
5 The new evidence provided by complainant, as well as the agency's
responses, has been reviewed by the Commission. We note that although the
emails between the MDO and the Labor Relations Specialist could arguably
support a disparate treatment claim, the instant complaint is limited to a
claim of failure to provide complainant with a reasonable accommodation.
6 In the context of job performance, an "effective" accommodation means
that the reasonable accommodation enables the individual to perform the
essential functions of the position. See Guidance.
7 Complainant states that she could not lift or bend because this
would cause pressure differentials within her eyes, subjecting them to
further damage. Complainant additionally states that the essential job
functions of a mail clerk include bending down to place trays in the
proper equipment.
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0120054585
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036