0120072247
12-03-2009
Helena L. Reid, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Helena L. Reid,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120072247
Hearing No. 120-2005-00499X
Agency No. 4K230024404
DECISION
Complainant filed an appeal from the agency's final action dated
May 11, 2007, finding no discrimination with regard to her complaint.
In her complaint, complainant, a Mark-Up Clerk (Automated), PS-4, at the
agency's Norfolk Post Office in Norfolk, Virginia, alleged discrimination
based on disability (carpal tunnel syndrome, arm injury, work related
stress) and in reprisal for prior EEO activity when from April 1, 2004,
and continuing, she was not given an 8-hour assignment as a reasonable
accommodation.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On January
22, 2007, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged incident. The AJ noted that
since complainant's on-the-job injury in September 1997, which resulted
in tendonitis in both her hands and arms, the agency provided complainant
with several limited duty assignments to accommodate these conditions.
In April 2001, complainant was diagnosed with adjustment disorder
with depressed and anxious mood. Since complainant took medications
every evening which caused drowsiness, her doctor ordered that she work
between the hours of 6:00 AM and 8:00 PM. Accordingly, the agency placed
complainant on limited assignment, including working between the hours
of 6:00 AM to 8:00 PM. In 2003, the agency returned complainant to her
position on Tour III which required her to begin work at 3:30 PM.
Complainant's supervisor stated that in February 2004, complainant
was converted from a part-time flexible automated mark-up clerk to an
unassigned regular flexible automated mark-up clerk. The supervisor
stated that on April 6, 2004, complainant accepted a modified assignment
(limited duty) which included duties of less than 2 hours of keying,
copying, prepping mail and other miscellaneous duties assigned within her
medical restrictions for her carpal tunnel and arm injury. The modified
assignment had duty hours of 1550 to 2400.
We note that complainant does not claim that the agency failed to
accommodate her restrictions related to her carpal tunnel and arm injury
during the relevant time period at issue. The record contains a March 7,
2003 light duty medical certification from complainant's doctor stating
that it is recommended that complainant receive a permanent position on
Tour 2 between the hours of 7:00 AM to 4:30 PM or leave work by 8:00
PM if on Tour 3. During the relevant time, complainant did not work
past 8:00 PM. The record reveals that on July 3, 2004, complainant was
released from physical therapy and her doctor released her to resume
her "regular hours." Complainant acknowledged that since July 3, 2004,
her medication was discontinued and received 8 hours of work.
Complainant's supervisor stated that although complainant made several
requests to work on Tour 2 at another location, they were denied since
she was not eligible for that position until she passed the Battery 470
examination. Complainant does not dispute this on appeal. The supervisor
also indicated that complainant failed to provide any similarly situated
employees since those employees identified by her were full time regular
employees on Tour 2.
The AJ determined and we agree that complainant failed to rebut the
agency's legitimate, nondiscriminatory reasons for the alleged incident.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant was denied or that the
agency's actions were motivated by discrimination. There is no indication
that complainant was required to work beyond her medical restrictions
or that there was a vacant funded position on Tour 2 within her medical
restrictions.
Accordingly, the agency's final action is AFFIRMED.
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
12/3/09
__________________
Date
2
0120072247
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013