Harold Sims, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 16, 2009
0120083476 (E.E.O.C. Jan. 16, 2009)

0120083476

01-16-2009

Harold Sims, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Harold Sims, Jr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120083476

Agency No. 1K-201-0012-07

Hearing No. 570-2007-00824X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's June 6, 2008 final action concerning his equal

employment opportunity (EEO) complaint claiming 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.

During the period at issue, complainant was employed as a Limited

Duty Mail Handler at the agency's Joseph Curseen, Jr. & Thomas Morris

Processing and Distribution Center (P&DC) in Washington, D.C.

On April 18, 2007, complainant filed the instant formal complaint.

Therein, complainant claimed that he was discriminated against on the

basis of disability (shoulder injury and depression). Complainant

specifically claimed that from December 1, 2006 through March 17, 2006,

he was subjected to ongoing harassment when:

(1) on various dates from December 1, 2006 to February 21, 2007, he has

not been accommodated with suitable work assignments;

(2) on various dates from December 1, 2006 to February 21, 2007,

he was accused of being fraudulent concerning his on-the-job injury

and management made jokes about his disability in front of the other

employees;

(3) from December 1, 2006 to February 25, 2007, he was put off-the-clock

and out of the building;

(4) on February 10, 2007, management went into his medical files and

discussed the information with other employees; and

(5) on January 28, 2007 and March 15 and 17, 2007, he was given

unwarranted discipline.

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 January 16, 2008, the AJ issued a Notice of Intent to

issue a decision without a hearing, allowing the parties to file a written

response to the Notice. The record reveals that both parties responded.

On February 5, 2008, the agency filed a motion for summary judgment or

in the alternative, an Agency's Motion for Decision Without a Hearing

Pursuant to 29 C.F.R. � 1614.109(g).

In its motion, the agency requested the AJ to issue a decision without a

hearing, in its favor. The agency argued that complainant's allegation

of discrimination concerning discipline, work assignments and being sent

home should be dismissed because these issues are moot, pursuant to 29

C.F.R. � 1614.107(a)(5). The agency further argued that the instant

complaint should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1),

for failure to state a claim. Specifically, the agency argued that

these claims constitute a collateral attack on the grievance process.

The agency then addressed the instant complaint on the merits, arguing

that the AJ issue a decision finding no discrimination. Specifically,

the agency argued that the alleged harassment was insufficiently severe

or pervasive to create a hostile environment.

On May 28, 2008, the AJ granted the agency's motion for a decision

without a hearing, finding no discrimination. The AJ found that

complainant failed to establish a prima facie case of disability

discrimination because he failed to establish that he was an individual

with a disability within the meaning of the Rehabilitation Act. The AJ

found that even assuming, arguendo, complainant established a prima facie

case, the agency nonetheless articulated legitimate, nondiscriminatory

reasons for its actions which complainant failed to show were a pretext.

Moreover, the AJ found that the alleged discriminatory events were not so

sufficiently severe or pervasive as to rise to the level of actionable

harassment. The AJ concluded that complainant failed to establish by

a preponderance of the evidence that he was subjected to a hostile work

environment because of his disability.

On June 6, 2008, the agency issued a final action, implementing the AJ's

decision finding no discrimination.

Regarding claim (1), the Supervisor Distribution Operations (SDO)

stated "I have never denied [complainant] the right to work. I have,

as a supervisor, evaluated the CA-17 submitted to me, and made sure

everything was in order."1 Specifically, SDO stated that complainant

"has been fully accommodated from December 06 - March 07." SDO stated,

however, that she recalled one occasion wherein complainant "failed to

provide management and his immediate supervisor at that time [named

supervisor] the CA-17 given to him a month before." SDO stated that

complainant was given an additional two weeks to bring the CA-17 to work.

SDO stated "at no time was he restricted not to work during this period.

He was still accommodated. After the two week period, [S1] asked for

the CA-17. [Complainant] did not have it and was informed that due to

the time restraint, he would not be allowed to work until he brought

in a completed CA-17." Further, SDO denied subjecting complainant to

harassment. SDO stated "I am not aware of any harassment claim made by

[complainant] to any managers concerning incidents from March 06 to

March 07."

Regarding claim (2), SDO stated "I have no knowledge of ever accusing

[complainant] of fra[u]dulent on the job activity." SDO further stated

that she never made jokes about complainant's disability in front of

other employees. Another Supervisor Distribution Operations (S2) stated

"at no time did I make a joke or jokes about [complainant's] impairment.

At no time did I hear [SDO] made a joke or jokes about [complainant's]

impairment. At no time did I hear anyone make a joke or jokes about

the impairment of [complainant]."

Regarding claim (3), SDO stated that complainant was given amply

opportunity under the Administrative Supervisor (AS) and S2 to complete

his CA-17. SDO further stated that complainant "failed to comply to

the rules. Therefore as the Acting Manager on duty at that time,

I had no alternative but to send [complainant] home until he could

provide acceptable documentation to define his restrictions. Once he

submitted the documentation, he was allowed to work. At NO TIME, has

[complainant] been denied the opportunity to work due to his restrictions

[emphasis added]."

AS stated that that complainant was off work from December 3, 2006

through December 12, 2006. AS stated that during the relevant time,

complainant "was never put out of the building but was told not to

return until he brought in the properly prepared Form CA-17...We cannot

allow anyone to work if they do not have updated medical restrictions.

We need to know what tasks they are able to perform; which requires

current medical restrictions."

Regarding claim (4), SDO denied going through complainant's medical

files or discussing them with other employees. SDO stated because she

had concerns with complainant's CA-17, she discussed it with management

on Tour 1, the medical nurse and S2. SDO stated that S2 "had questions

about the differences in the CA-17. That is why I referred my questions

to [Injury Compensation Manager] for further clarification."

S2 denied going through complainant's medical files or discussing them

with other employees. S2 stated that during the relevant time, SDO

informed him that complainant's CA-17 was unacceptable because it was

incomplete. S2 further stated that SDO "determined that an investigation

was warranted and forwarded information to the Injury Compensation staff

to address. [SDO] then told me that she was following the instructions

of the Injury Compensation regarding [Complainant's] CA-17."

Regarding claim (5), the record reflects that on January 28, 2007, S2

issued complainant a Notice of Suspension of 7 Days for Unauthorized

Overtime and Failure to be Regular in Attendance. The record further

reflects that S2 stated that on March 15, 2007, complainant was issued a

14-Day Suspension for Failure to Report an Accident Timely. Specifically,

S2 stated that on March 12, 2007, complainant requested to fill out an

accident report. S2 stated that in his CA-1 form, complainant alleged

that his accident "was based on being harassed by [SDO] while she was a

supervisor and while she was an Acting Manager. He also stated that the

accident occurred on November 30, 2006 and continued to the president

(03/12/07)." S2 stated that because complainant reported an accident

that had purportedly occurred more than three months before reporting

it, complainant was issued a Pre-Disciplinary Interview on March 13,

2007 "to determine why he had waited so long to report the accident.

[Complainant] stated that he did not know that he was supposed to report

an accident in a certain amount of time." S2 stated that on March 17,

2007, complainant was issued a 14-Day Suspension for Failure to be

Regular in Attendance "based on his attendance record from October

31, 2006 through March 5, 2007." S2 stated that he did not subject

complainant to harassment. Specifically, S2 stated that complainant

"was not given discipline for his impairment. He was given discipline

for his attendance and for him not filing an accident report timely."

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.

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 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).

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

January 16, 2009

__________________

Date

1 Form C-17 is a Duty Status Report.

??

??

??

??

2

0120083476

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

6

0120083476

7

0120083476