Nadine C. Brown, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 6, 2009
0120072274 (E.E.O.C. Aug. 6, 2009)

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