0120072274
08-06-2009
Nadine C. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nadine C. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072274
Hearing No. 220-2006-00055X
Agency No. 4C-440-0231-05
DECISION
Complainant filed an appeal from the agency's final action dated March 6,
2007, finding no discrimination with regard to her complaint. In her
complaint, dated October 1, 2005, complainant, a City Carrier, PS-6, at
the agency's Beachwood Post Office, Ohio, alleged discrimination based
on age (over 40), disability (Fibromyagia, polyarthritis, tendonitis
left shoulder, chronic back pain, bilateral hip pain, bursitis and
exposure to pesticides), and in reprisal for prior EEO activity when:
(1) she was not paid for days she missed work on May 12 - 14, 2005; and
(2) on June 2, 2005, management made changes on her route and did not
consider her physical limitations.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On February
27, 2007, 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 actions.
With regard to claim (1), complainant indicated that on May 12, 2005,
she was exposed to pesticides which caused her to go to the hospital
emergency room and missed 3 days of work. Complainant's supervisor stated
that on May 12, 2005, the emergency room cleared complainant to return
to work, but she went to her private doctor who kept her off work until
May 14, 2005. Specifically, complainant's manager indicated that during
the relevant time period, complainant failed to provide required medical
documentation, either by providing documentation from her emergency room
visit or signing the medical release so that records could be obtained.
The supervisor stated and complainant admitted that she was subsequently
paid for those days later. The AJ stated that we agree that complainant
failed to show that she was treated less favorably than a similarly
situated employee under similar circumstances.
With regard to claim (2), complainant indicated that during the relevant
time period, management changed her route by adding more residential
stops to her route. The manager stated that not only complainant's
route, but all routes at the Beachwood Post Office were ordered by the
District Manager to undergo a route adjustment in order to save travel
time on routes. Routes that were under 8 hours, as complainant's, were
adjusted up to 8 hours; routes that were over 8 hours were adjusted
down to 8 hours. The Manager indicated that the daily functions of
complainant's letter carrier positions were to case mail, carry her
route, deliver parcels and Express Mail and perform office functions.
Due to her on the job injury, the agency was required to provide 8 hours
of work within her medical restrictions on the monthly medical evaluation
of her doctor.
Complainant's medical document dated June 6, 2005, provided her injury
as back pain and her restrictions which included: 2 hours per day of
climbing, bending/stooping, twisting, and pulling/pushing, 3 hours of
standing, 3 1/2 hours of sitting while driving, 4 hours 10 minutes of
intermittent lifting of 30 pounds, 4 and 1/2 hours of walking, 5 hours
of grasping, manipulation and reaching above the shoulder, and 6 hours
of driving a vehicle.
Complainant claimed that the route changes caused her to do more walking,
climbing of stairs and steps, using her mail cart on uneven terrain,
and caused her to be exposed to colder temperatures for longer periods
of time. However, other than her being subjected to more walking and
climbing and "unfavorable" (in complainant's opinion) duties, including
colder temperature, the AJ determined that complainant failed to explain
that she could not perform these duties nor did she indicate that these
assignments violated her medical restrictions specified in the June 6,
2005 medical document.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that
she was denied a reasonable accommodation or that any agency actions
were motivated by discrimination. The agency noted that subsequently, on
July 12, 2005, complainant was offered and accepted a modified assignment
(limited duty).
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
8/6/09
__________________
Date
2
0120072274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013