Mary J. Williams, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 13, 2003
01A21661 (E.E.O.C. Mar. 13, 2003)

01A21661

03-13-2003

Mary J. Williams, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Mary J. Williams v. Department of Veterans Affairs

01A21661

March 13, 2003

.

Mary J. Williams,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A21661

Agency No. 200I-2774

Hearing No. 140-A1-8297X

DECISION

Complainant timely initiated an appeal from a final agency order

concerning her complaint of 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. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleges she was discriminated

against on the basis of disability (back injury) when:

she was terminated and her appointment was not renewed; and

she was not selected for other positions.

For the following reasons, we AFFIRM the agency's final action

implementing the administrative judge's grant of summary judgment.

The record reveals that during the relevant time, Complainant was employed

as a Housekeeping Aid at the agency's Veterans Administration Medical

Center in Columbia, South Carolina.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint on August 28,

2000. At the conclusion of the investigation, complainant was provided

a copy of the investigative file and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing

finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of disability discrimination because she failed to show she was able

to perform the essential functions of her position distributing linen.

He concluded that the testimony was undisputed that because of a back

injury, complainant was unable to lift, bend or stoop. The AJ concluded

that complainant was substantially limited in the major life activity

of performing manual tasks but that she was not a qualified individual

with a disability because of her inability to perform her job. The AJ

found that the record established the agency accommodated complainant's

back condition on a temporary basis but her condition was only temporary

in nature and consequently, the agency was not required to provide her a

reasonable accommodation. In addition, the AJ found there was no evidence

that she was treated less favorably because of her medical condition.

The agency's final action implemented the AJ's decision.

On appeal, complainant contends, among other things, that her rights as

a disabled veteran<1>, were violated. She also asserts that when she was

released to full duty she asked for the accommodation of being reassigned

because she continued to have back problems. Complainant contends that

she was refused a reassignment and unlawfully terminated. She also

contends she was refused consideration for other positions because of her

disability. She contends that her back condition constitutes a disability

because she has developed arthritis and because it affects her daily life.

The agency stands on the record and requests that we affirm its final

action implementing the AJ's decision.

ANALYSIS AND FINDINGS

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. This regulation is patterned after summary judgment 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 does not sit as a fact finder. Id.

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. A disputed 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 under Title VII, an AJ may properly consider

summary judgment only upon a determination that the record has been

adequately developed for summary disposition.

Courts have been clear that summary judgment is not to be used as a

"trial by affidavit." See e.g. Redmand v. Warrener, 516 F.2d 766, 768

(1st Cir. 1975). The Commission has held that when a party submits an

affidavit and credibility is at issue, "there is a need for strident

cross-examination and summary judgment on such evidence is improper."

Pedersen v. Department of Justice, EEOC Request No. 05940339 (February

24, 1995).

After a careful review of the record, we find that the AJ was correct in

concluding that there were no genuine issues of material fact in this

case. In our discussion of complainant's disparate treatment claim,

we will assume that complainant meets the definition of an individual

with a disability within the meaning of the law.

Even assuming complainant was an individual with a disability, complainant

failed to put forth enough evidence to create a question of fact that

others who were not disabled were treated more favorably than her.

Rather complainant referred in her testimony to reasons other than her

disability such as the fact that others were treated more favorably

because they were part of the group or a �gang� and she was not.

In addition, complainant failed to raise an issue of fact regarding the

agency's reasons for terminating her employment and not considering her

for other positions. That is, complainant's supervisor and the Chief of

the Environmental Management both stated that complainant's appointment

was not renewed because she did not perform her duties well while she

was on the job and that there were complaints from other employees

about her performance. Complainant did not contest this statement,

nor did she offer enough evidence to create a question of fact that the

agency's reasons for not rehiring her were a pretext for discrimination.

Complainant claimed that her supervisor stated she would not be re-hired

because of her back injury but aside from her own bare assertion, she

failed to offer any corroborating evidence to support her contention.

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, the Commission AFFIRMS the

agency's final action.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

March 13, 2003

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1Complainant's claim as a disabled veteran are not actionable under the

Rehabilitation Act and as such are not addressed herein.