0120092365
09-21-2009
Patricia DiPleco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia DiPleco,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092365
Agency No. 4A-105-0041-07
Hearing No. 520-2008-00081X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 27, 2009 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
During the period at issue, complainant was employed as a Mail Processing Clerk at the agency's Mid-Hudson Processing and Distribution Center in Newburgh, New York.
The record reflects that complainant has been diagnosed with bilateral median neuropathy and left dorsal wrist syndrome. Complainant alleged that the agency regarded her as disabled since 1991. The record further reflects that while complainant never requested a reasonable accommodation, the agency provided her with a limited duty assignment within her medical restrictions. Because complainant did not respond to the agency's initial September 19, 2006 request for updated medical documentation, she was then sent National Reassessment Process (NPR) letters dated January 22, 2007, February 15, 2007, and April 6 and 16, 2007 requesting updated medical records.
Further, the record reflects that the agency implemented the NRP to review limited duty and rehabilitation positions, and to then ensure that employees have a current medical on file, are working their modified assignments as written, are in positions or offered assignments within their current medical restrictions and are in productive work assignments best serving the interests of the agency.
On July 10, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the bases of disability (wrists) and in reprisal for prior EEO activity.
On July 19, 2007, the agency issued a partial dismissal. The agency dismissed the following two claims pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim:
beginning January 21, 2007, management threatened complainant with rescinding her reasonable accommodation; and
she read a letter on January 30, 2007, regarding the NRP.
However, the agency accepted for investigation the following three claims:
a. since September 2006 and continuing, complainant has been required to provide more medical documentation than is necessary;
b. she was required to undergo a Fitness for Duty Examination on or about April 30, 2007; and
c. on June 13, 2007, management did not reasonably accommodate her by requiring her to work eight hours rather than four hours; and
At the conclusion of the investigation concerning claims a - c, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). Complainant filed a motion to reinstate her two dismissed claims, referenced above.
On March 13, 2009, the AJ issued a decision without a hearing, finding no discrimination. Therein, the AJ denied complainant's motion to reinstate the two dismissed claims, with prejudice. The AJ then addressed claims a - c on the merits, finding no discrimination. The AJ found that in regard to claims a and b, complainant did not establish a prima facie case of disability and reprisal discrimination.1 The AJ further found that assuming arguendo complainant established a prima facie case of disability and reprisal discrimination, the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
Regarding claim a, the AJ noted that according to the Health & Resource Management Specialist stated "knowing that the NRP process was about to begin, I reviewed my files and began sending letters to all employees whose medical documentation was more than six months old. Since I did not have the May 2006 report from [a named physician] on file, I requested that the Complainant obtain an update. Shortly after that, the NRP process began and the NRP Team took over requesting medical updates."
Regarding claim b, the AJ noted that the Manager, Health and Resource Management (M1) stated that complainant was required to undergo a Fitness for Duty Examination on or about April 30, 2007, because the NRP Team wanted to have an updated medical evaluation on file. M1 stated that after complainant had difficulties scheduling an appointment with a physician in her area to obtain the updated medical information required by the NRP on several occasions, she offered to assistant complainant finding a physician who would examine her. Specifically, M1 stated that during a telephone conversation between a named Human Resources representative and complainant, complainant "stated she could not find a [doctor] in her area to treat her since they had done all they could. Therefore it was offered that USPS would look for a [doctor] for her if she agreed, and she did. So I found a specialist and scheduled her for exam."
Regarding claim c, the AJ first noted that in its motion for summary judgment, the agency moved to dismiss this claim because it was "undisputed that the Complainant was not forced to work eight (8) hours instead of four (4) hours as alleged." (emphasis in original). The AJ further noted that complainant maintained that reprisal had in fact occurred, because during an EEO mediation session, an agency manager had voiced an "interpretation" that complainant's medical information indeed permitted an eight-hour day. The AJ found that complainant did not establish a prima facie case of reprisal discrimination in regard to this claim. The record supports a finding that complainant acknowledged she never worked eight hours rather than four hours, on June 13, 2007.2
On March 27, 2009, the agency issued a final action, implementing the AJ's decision finding no discrimination concerning claims a - c.
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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final action concerning claims a - c because the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.3
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
September 21, 2009
__________________
Date
1 For purposes of analysis only, and without so finding, the Commission presumes that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
2 The record does not contain a copy of complainant's deposition, that addresses this issue. However, as noted by the AJ, the record contains complainant's affidavit in the investigative report. Therein, complainant stated that on June 13, 2007, she underwent a "redress/mediation" wherein an agency official stated that her interpretation of a physician's report was that complainant could work eight hours per day. Complainant further noted, however, that complainant spoke to the physician "and his intent was to continue my 4 [hour] limitations per day. (Affidavit A, page 3 of 37, response to question 13).
3 On appeal, complainant does not challenge an agency July 19, 2007 partial dismissal regarding the two above referenced dismissed claims. Therefore, we have not addressed these issues in our decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120092365
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092365
7
0120092365