0120072793
11-24-2009
Kim McDougald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency Appeal No. 0120072793 Hearing No. 430-2007-00039X Agency No. 4C-280-0091-06
Kim McDougald,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency
Appeal No. 0120072793
Hearing No. 430-2007-00039X
Agency No. 4C-280-0091-06
DECISION
Complainant filed an appeal with the Commission concerning her equal
employment opportunity (EEO) complaint alleging discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. In her complaint, complainant
alleged that the agency discriminated against her on the basis of
disability (anxiety, stress, depression, and carpal tunnel syndrome)
on April 10 and 12, 2006, when she was directed to perform work outside
her medically-identified restrictions.
After completion of the investigation of the complaint, complainant
requested a hearing on her complaint before an EEOC Administrative Judge
(AJ). Over complainant's objection, the AJ granted the agency's Motion
for Decision Without a Hearing and found complainant failed to show that
she was subjected discrimination as alleged. The AJ determined that
complainant had not established that she was a qualified individual
with a disability at the time of the alleged discriminatory conduct,
and therefore, she could not establish that was discriminated against
on the basis of disability.
Complainant filed an appeal with the Commission on May 23, 2007, 43
days after receiving the AJ's decision. The agency subsequently issued
its final order fully implementing the AJ's decision on June 1, 2007,
the same day on which it states it received the judge'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.
We have reviewed the record in its entirety, including statements
submitted on appeal. We find the AJ's issuance of a decision without a
hearing was appropriate as there are no genuine issues of material fact
in dispute. For purposes of our analysis, we have assumed, arguendo,
that complainant is an individual with a disability. The record
contains a February 7, 2006 document signed by complainant's treating
physician noting complainant's restrictions include "avoidance of
repetitious pushing, pulling, gripping, pinching and fingering and
the avoidance of stressful lifting." On April 7, 2006, complainant
accepted the agency's offer of modified assignment (limited duty) clerk.
Among the duties listed in that modified assignment was "Help in the Box
Section Boxing Mail (within restrictions)." On April 10 and 12, 2006,
complainant's supervisor directed her to box mail. On each occasion,
complainant declined the assignment. Following her second refusal, the
agency conducted a pre-disciplinary interview. Complainant refused to
answer any questions and walked out of the pre-disciplinary interview.
No disciplinary action was taken against complainant as a result of her
walking out of the pre-disciplinary interview. Complainant was thereafter
assigned to other work outside of the box section. Based upon the record,
we find that complainant failed to show that the agency's actions were
motivated by discrimination. Moreover, there is no indication that
complainant was required to work beyond her medical restrictions or
that she was subjected to discipline or any adverse action for failing
to box mail on April 10 and 12, 2006.
Accordingly, the agency's final order 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
November 24, 2009
__________________
Date
2
01-200702793
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120072793