Ray F. Baker, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 1, 2009
0120071366 (E.E.O.C. May. 1, 2009)

0120071366

05-01-2009

Ray F. Baker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Ray F. Baker,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071366

Agency Nos. 4G-870-0050-05 & 4G-870-0156-05

Hearing Nos. 350-2005-00263X & 540-2006-00077X

DECISION

Complainant filed an appeal with this Commission concerning his complaint

of unlawful employment discrimination. In the first complaint (Agency

No. 4G-870-0050-05), complainant alleges that he was subjected to

discrimination on the bases of disability (severe plantar fastitus)

and in reprisal for prior EEO activity when:

1. On February 25, 2004, complainant was issued a 7-day suspension for

Unsatisfactory Work Performance/Unacceptable Conduct.

2. On March 1, 2005, complainant was denied reasonable accommodation

when he was informed that he could no longer wear z-coil shoes.

In the second complaint (Agency No. 4G-870-0156-05), complainant alleges

that he was subjected to discrimination in reprisal for prior protected

EEO activity when:

3. During the period from August 13, 2005, through September 23,

2005, management allowed two co-workers to receive more overtime than

complainant.

On December 19, 2006, an EEOC Administrative Judge (AJ) issued a decision

without a hearing finding that there was no genuine issue of material fact

in dispute, and concluded that complainant had not been discriminated

against. Specifically, the AJ found the agency presented legitimate,

nondiscriminatory reasons for its actions, which complainant failed

to rebut. On December 28, 2006, the agency issued a decision finding

no discrimination. The agency fully implemented the AJ's decision.

Complainant now appeals from that decision. We find that the AJ correctly

defined the issues in the complaint.

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.

We find that the agency articulated legitimate, nondiscriminatory reasons

for its actions. Regarding complainant's claim that he was issued a 7-day

suspension for Unsatisfactory Work Performance/Unacceptable Conduct,

complainant filed a claim with the Department of Labor's Office of

Workers' Compensation Program (OWCP) for an alleged on-the-job injury to

his elbow and right shoulder on December 29, 2004. Complainant claimed

that his condition caused him acute pain, loss of motion, loss of grip,

and severe fatigue, which prevented him from working. Due to his supposed

limited mobility, complainant did not report for duty. Notwithstanding

his medical restrictions, postal inspectors observed complainant cleaning

and reassembling rifles at home. In doing so, complainant performed

tasks such as pushing, pulling, and grasping a rod through the armaments

for a period of four hours, which demonstrated complainant's ability to

return to work. Upon learning of his off-duty activities, the Supervisor

of Customer Service held a pre-disciplinary interview with complainant

on February 23, 2005. During the fact-finding interview, complainant

attempted to justify his prolonged absence, but was not forthcoming

about his behavior. After considering complainant's explanations,

the Supervisor of Customer Service determined that a 7-day suspension

was in fact warranted. The Manager of Customer Service concurred with

the issued discipline stating that complainant was clearly capable of

working during that time, but he clearly elected not to do so.

With respect to complainant's claim that, during the period from August

13, 2005, through September 23, 2005, management allowed two co-workers

to receive more overtime than complainant, the Supervisor of Customer

Service for Tour 1 stated that complainant signed the Overtime Desired

List (OTDL) for the period August 13, 2005, through September 23, 2005.

The Supervisor of Customer Service for Tour 1 asserted that, if he had

work that complainant was qualified to do, he made the decision to work

complainant on overtime The Supervisor of Customer Service for Tour 1

claimed that complainant had limited duty restrictions. The Supervisor

of Customer Service for Tour 1 said that complainant was a Manual

Qualified Clerk. The Supervisor of Customer Service for Tour 1 stated

that complainant was qualified to pitch City Scheme letters and flats,

and could also be utilized to pitch City Parcel Post, Sectional Center

Facility (SFC) flats and letters, and Parcel Post. The Supervisor of

Customer Service for Tour 1 stated that the distribution of overtime

was based on opportunities, and on factors such as: the employee has to

be qualified to do the work that is required; the amount of work based

on mail volume available; and the number of employees on the clock who

are available to do the required work in order to dispatch the required

mail at the scheduled dispatch hour. The agency asserted that the two

coworkers identified by complainant were not similarly situated because

they generally worked different shifts when working overtime and the

two coworkers did not have any medical limitations in working.

Upon review, we find that complainant failed to rebut the agency's

articulated legitimate, nondiscriminatory reasons for its actions.

Moreover, complainant failed to show, by a preponderance of the evidence,

that he was discriminated against on the alleged bases.

With regard to complainant's claim that he was denied a reasonable

accommodation, complainant stated that a directive was issued from the

Albuquerque District that z-coil shoes could no longer be allowed on the

work room floor. Complainant stated that he was told by the Manager of

Maintenance that he could no longer wear the z-coil shoes. Complainant

said that the Manager of Maintenance was acting on a directive sent

out by the Albuquerque District, acting on a directive sent out by

the Regional Office in Dallas. Complainant claimed that he was being

discriminated on the basis of disability (severe plantar fastitus)

because he had a note from his doctor stating that the wearing of

the z-coil shoes benefits him greatly. Assuming complainant was a

qualified individual with a disability, we note that complainant did

not provide any medical documentation that he needed to wear z-coil

shoes as an accommodation in order to perform the essential functions

of his limited duty assignment which consisted of casing city letters,

answering phones, performing window call, and clearing the carriers.

Thus, we find complainant did not establish that the agency denied him

a reasonable accommodation. Regarding the disparate treatment nature of

claim 3, we find that the agency articulated a nondiscriminatory reason

for disallowing such footwear, namely, because management deemed it a

safety hazard. Complainant has not shown that this reason was a pretext

for discrimination.

The agency's decision finding no discrimination 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

May 1, 2009

__________________

Date

2

0120071366

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013