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