Melissa E. New Moon, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 10, 2009
0120090263 (E.E.O.C. Mar. 10, 2009)

0120090263

03-10-2009

Melissa E. New Moon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Melissa E. New Moon,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090263

Hearing No. 560-2007-00194X

Agency No. 4G-730-0097-06

DECISION

Complainant filed an appeal from the agency's final action dated September

25, 2008, finding no discrimination with regard to her complaint. In her

complaint dated September 21, 2006, complainant alleged discrimination

based on race (Native American), color (red), disability (carpal tunnel,

shoulder injury), age (over 40), and in reprisal for prior EEO activity

when:

(1) On May 18, 2006, and August 9-16, 2006, she was sent home and not

permitted to work within her restrictions;

(2) On July 14, 2006, management instructed her to perform work not

within her restrictions;

(3) Since August 9, 2006, she has been off work and not allowed to report;

and

(4) On March 19, 2007, she was issued a separation notice.

Upon completion of the investigation of the complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On

September 18, 2008, the AJ issued a decision without holding a hearing,

finding no discrimination. The agency's final action implemented the

AJ's decision.

Initially, we note that complainant, via her attorney, contends on appeal

that the AJ improperly denied a hearing due to her failure to file a

timely response to the agency's motion for a decision without a hearing.

Without deciding the timeliness of complainant's response at issue, we

will consider complainant's motion in opposition to summary judgment.

In her motion in opposition to summary judgment, complainant admitted

(as asserted by the agency in its motion) that during the relevant time

period, she had a 10-pound lifting restriction which subsequently

increased to 20 pounds. She indicated that in addition to that

restriction, she also had no driving, no climbing, and only frequent

bending, squatting, kneeling and/or twisting restrictions. With regard to

the May 18, 2006 incident, complainant stated that she did not refuse to

perform work; rather, complainant stated that she told her manager that

"she could not perform the duty." Complainant admitted that her union,

on her behalf, filed a grievance concerning the foregoing incident, but

the union subsequently withdrew the grievance. Complainant, disputing

the agency's statement, also indicated that on December 28, 2006, the

agency's Oklahoma District Reasonable Accommodation Committee (DRAC)

did not meet to find if there was available work for her within her

medical restrictions, but instead met to find information to justify not

accommodating her. In her motion, complainant did not dispute the fact

that she could not perform her position duties and due to her inability

to meet the requirements of her position, she was issued the notice of

removal at issue. Complainant admitted that her disability retirement

was subsequently approved.

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.

After a review of the record, including the agency's motion for a decision

without a hearing and complainant's response in opposition thereto,

we find 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 actions. At the time of the alleged incidents,

complainant was employed as a modified full-time Letter Carrier at

the agency's Britten Station in Oklahoma City, Oklahoma. The record

indicates that complainant began employment at the agency since 1986,

and sustained a number of on-the-job injuries and filed numerous workers'

compensation claims since then.

The AJ indicated that at the time of the alleged incidents, complainant

had temporary foot restrictions due to her foot surgery, i.e., lifting up

to 20 pounds, standing/walking two to four hours per day, sitting eight

hours per day, and no climbing, kneeling or twisting. With regard to

claim (1), complainant's manager stated that during the relevant time

period, complainant told her that she could no longer case her route or

case the top shelves. Complainant also refused to deliver express mail

although the manager offered to drive the vehicle for her. The manager

indicated that since there was no work available for complainant, she

then told complainant to complete a leave slip and asked her to produce

medical documentation to substantiate her claim of not being able to

perform these duties. The manager stated that complainant failed to

provide such documentation and also refused to case and carry mail.

With regard to claim (2), complainant claimed that the manager told

her to case the top row which was beyond her permanent restrictions.

The manager indicated that at that time, complainant was working in her

light duty assignment and she was not being productive. Specifically,

the manager stated that complainant was casing only about one foot of

mail per hour instead of four feet of mail per hour under the agency's

casing regulations. The manager indicated that complainant, despite

a number of her requests, failed to provide any medical documentation

showing that she could not perform her duties.

With regard to claim (3), complainant claimed that she was denied an

accommodation. Specifically, complainant indicated that she was not

able to perform the core duties of her position (casing, pulling down,

and carrying) and management failed to provide work available within her

restrictions for an eight-hour period of time. The manager stated that

despite her numerous requests for medical documents, complainant failed

to provide such documents. The manager indicated that complainant was

initially permitted to refrain from casing in the manner she specified

while waiting for the documentation that was requested. However, when

the deadlines for the documentation expired, i.e., in January 2006

and July 2006, the manager stated that she told complainant to either

produce the medical documents restricting her from the requested duty

or case as instructed.

With regard to claim (4), the AJ stated that the notice of removal was

issued to complainant only after the foregoing events, when she continued

to state she could not perform her work and did not report to work.

The AJ noted that during the DRAC meeting, complainant said that she could

not perform any of the work of her position. The Committee determined

that there was no work available for complainant at the agency. The AJ

noted that complainant applied for and received disability retirement

on November 20, 2007.

The AJ found that complainant presented no evidence of any individuals

outside of her protected groups who was treated differently under similar

circumstances. Furthermore, the AJ stated, and we agree, that complainant

failed to rebut the agency's legitimate, nondiscriminatory reasons for

the alleged incidents. Assuming (without deciding) that complainant

was an individual with a disability, the Commission finds that she

failed to show that she was denied a reasonable accommodation or that

any agency actions were motivated by discrimination. Complainant has

not shown that she provided the necessary medical documentation showing

she needed any particular type of accommodation to perform the functions

of her position.

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

3/10/09

__________________

Date

2

0120090263

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013