0120092287
10-20-2009
Freddie M. Farris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Freddie M. Farris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092287
Agency No. 4F-945-0176-08
Hearing No. 550-2009-00074X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 25, 2009 final action concerning
an equal employment opportunity (EEO) complaint claiming employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
During the period at issue, complainant was employed as a City Carrier
at the agency's Willow Glen Station in San Jose, California.
On August 5, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against her
on the basis of disability (bi-lateral elbow tendonitis) when:
on May 16, 2008, she was removed from her limited duty job in the Passport
Office and placed in non-productive work assignments.
The record reflects that during the relevant time, complainant was
unable to perform the essential functions of her City Carrier position
with or without accommodation because of her physical limitations.
The record further reflects that complainant was limited to one hour
of simple grasping, fine manipulation, reaching above her shoulders,
and driving a vehicle.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On December 29, 2008, the AJ issued a Notice
of Intent to Issue a Decision Without a Hearing (Notice) allowing the
parties to file written response to the Notice. The record reflects
that only complainant responded.
On March 9, 2009, the AJ issued a decision without a hearing, finding
no discrimination. Therein, the AJ determined that complaint is a
qualified individual with a disability under the Rehabilitation Act.
The AJ further found that there was no dispute that complainant was not
qualified to perform the duties of a City Carrier with accommodation.
Specifically, the AJ found that in order for the agency to provide work
for complainant, she was assigned to the Passport Office.
Further, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for removing from her limited duty job in
Passport Office. Specifically, complainant was in the Carrier Craft;
however, the Passport office job is in the Clerk Craft, and such crossing
of crafts is prohibited under the collective bargaining agreement and
local Memorandum of Understanding (MOU).
The Postmaster (PM) stated that complainant was removed from the Passport
Office because she was a Carrier crossing to the Clerk Craft, a practice
prohibited under the collective bargaining agreement for the Clerk Craft.
Specifically, PM stated an "agreement was made with clerk union to
return all carriers back to their carrier craft once bids were posted
for vacant clerk positions in passports which did occur and carriers
were returned to their craft." PM further stated that the Acting
Manager removed complainant "from the Passport job, explaining that
all carriers in passports were being sent back to the carrier craft."
Moreover, PM stated that complainant's disability "was not a factor in
the decision to return complainant to her craft."
On appeal, complainant argues that the according to the local MOU,
crossing craft is not prohibited. Complainant further argues that the
agency "cannot show a legitimate reason for removing me and three other
injured co-workers from our Rehabilitation positions." Complainant
requests that she be reinstated to her former limited duty job in the
Passport Office.
In response, the agency argues that Article 13, Section 4 of the
collective bargaining agreement states "every effort shall be made to
reassign the concerned employee within the employee's present craft or
occupational group." The agency further argues that by implementing this
requirement, management removed complainant from her limited duty job in
the Passport Office "to duties within her original craft. The agency thus
submits that it has adhered to its contractual commitment under Section
4A of Article 13 of the Contract." Finally, the agency argues that while
complainant is seeking a particular job, the Rehabilitation Act "does
not create such an entitlement, neither do the collective agreements."
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the
AJ's findings on the merits. Therefore, 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 action, 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 unlawful
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 20, 2009
__________________
Date
2
0120092287
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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