0120090214
02-26-2009
Mark R. Fewkes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mark R. Fewkes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090214
Hearing No. 551-2007-00006X
Agency No. 4E-980-0091-06
DECISION
Complainant filed an appeal from the agency's final action dated September
12, 2008, finding no discrimination with regard to his complaint. In his
complaint, dated May 25, 2006, complainant alleged discrimination based
on disability (ankle and foot injury) when he was denied a reasonable
accommodation in that he was not allowed to return to work between March
7 and October 23, 2006.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On
September 12, 2008, 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 action. At the time of the
alleged incident, complainant was a City Letter Carrier in the agency's
Tacoma Post Office, Washington. The AJ noted that a Letter Carrier were
required to carry at least 20-pound loads continuously, lift up to 70
pounds intermittently, drive 4 - 6 hours per day, and sort or case mail
between 3 and 8 hours per day.
The AJ noted that complainant injured his ankle in the military and
re-injured it in 2002. He had multiple surgeries on his right ankle,
foot and leg, the most recent on February 23, 2006. On March 6, 2006,
complainant's doctor released him to return to work next day, but
indicated in his CA-17 Duty Status Report form that he was not able
to perform his regular position duties. Complainant's limitations
included he was able to case "as tolerated," no lifting, no walking,
6 minutes continuous standing, a maximum of 1 hour standing per day,
and no driving. Complainant's supervisor informed him that there was no
work available for him and the medical reports were vague, specifically
the "as tolerated" restriction. The agency indicated that complainant
was also observed having trouble walking to and from the next room at
the facility. During the relevant time period at issue, complainant
submitted a number of CA-17s indicating some medical improvement but
still not able to perform his regular position duties and "work at
his own pace" restriction. The agency asked complainant for medical
documentation identifying specific restrictions, but he failed to do so.
The AJ noted that complainant was, temporarily, not able to perform his
Letter Carrier duties during his post-operation recovery period, but
he was able to perform the duties before the February 2006 operation
and since October 2006. The AJ indicated that if the agency were to
allow complainant to work for as long as he could "tolerate" his pain,
he would have had further injury. Furthermore, the AJ stated that
allowing complainant to work at a slower pace would have "slow[ed] down
the assembly line" or decreased the effectiveness of timely delivering the
mail at the agency. The AJ found that complainant was not a "qualified"
individual with a disability during the relevant time period because
complainant was unable to perform the essential functions of the position
during the relevant time period.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that
he was denied a reasonable accommodation or that any agency actions
were motivated by discrimination. Complainant does not allege that
he was required to perform duties beyond his medical restrictions.
Despite complainant's claim, we, however, note that an employer is not
required to create a job for a disabled employee; nor is it required to
transform its temporary light or limited duty assignments into permanent
jobs to accommodate an employee's disability. See Mengine v. Runyon, 114
F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. United States Postal
Service, EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement
Guidance: Workers Compensation and the ADA, EEOC Notice No. 915.002 at
21 (September 3, 1996). We agree with the AJ that complainant was not
"qualified" because he was unable to perform the essential functions
of the position during the time in question. Furthermore, complainant
failed to show that there was any vacant funded position that met his
medical restrictions during the relevant time period at issue.
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
2/26/09
__________________
Date
2
0120090214
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013