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.
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0120083476
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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