0120082275
10-26-2009
Richard D. Menken, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard D. Menken,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082275
Hearing No. 410-2007-00090X
Agency No. 4H-300-0201-06
DECISION
On April 21, 2008, complainant filed an appeal from the agency's March
19, 2008 final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Letter Carrier at the agency's General Mail Facility in Atlanta,
Georgia. The record reveals that on October 3, 1990, complainant injured
his back while delivering the mail. Hearing Transcript (HT) at 15.
As a result of this injury, from 1990 to 2005, complainant had repeated
injuries and surgeries on his back. Id. at 18. In November 2005,
complainant returned to work after an absence due to this work-related
back injury and was assigned a position as a modified Letter Carrier.
Id. at 19. In 2005, the Postmaster (PM1) assigned complainant to a
part-time Clerk position in the Central Forwarding Center unit (CFC). Id.
His bid job as a Letter Carrier was held vacant, and his normal duties
were performed by part-time flexible employees. Id.
In April of 2006, a new Postmaster (PM2) began to implement the agency's
decision to abolish the CFC unit. Id. at 135. On August 1st, 2006,
the PM2 offered complainant an assignment as a Clerk on the Tour III.
Id. at 92. The job offer stated that he would sit while sorting letters
and stand while sorting flats. Report of Investigation (ROI) at Exh. 9.
Complainant took the job offer "under duress." ROI, Exh. 13. Complainant
retired from the Postal Service on December 1, 2006. HT at 13.
On September 20, 2006, complainant filed a formal EEO complaint alleging
that he was discriminated against on the basis of disability (back injury)
when:
1. the agency offered alternate employment to complainant during the
period of May through August of 2006, following his removal from his
bid position as a Letter Carrier; and
2. the agency's failure to accommodate him led to his constructive
discharge.
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of his right
to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. On June 11, 2007, the AJ held
a telephonic conference to issue a decision on the agency's Motion for
a Decision Without a Hearing. Report of Investigation (ROI), June 11,
2007 Transcript. The AJ determined that no genuine issues of material
fact existed with regard to complainant's allegation that the agency's
failure to accommodate him led to his constructive discharge. June 11,
2007 Transcript at 85. The AJ found that complainant failed to show
that he should have maintained his Letter Carrier position and his
seniority rights even though he was unable to perform the work of the
Letter Carrier. Id. As a result, the AJ determined that claim 2 did not
warrant a hearing. Id. However, the AJ determined that a hearing was
warranted on claim 1. Id. The AJ held a hearing on December 10, 2007.
On December 12, 2007, the AJ issued a decision finding that complainant
failed to establish that he was a qualified individual with a disability
because he failed to show that there was a vacant, funded position that
he could perform. Id. at 24. With regard to complainant's constructive
discharge claim, the AJ found that failed to prove that he was medically
prohibited from performing the duties of the offered position on the
night shift. Id. at 27. The AJ further found that complainant failed
to show that the conditions of his work assignment were such that he
was forced to retire. Id. at 28. Accordingly, the AJ found that
complainant failed to establish that the agency failed to provide him
a reasonable accommodation.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. Complainant did not submit a statement in support of his
appeal.
ANALYSIS AND FINDINGS
As a preliminary matter, we must first determine whether it was
appropriate for the AJ to have issued a decision without a hearing
on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
The record was appropriately developed for the AJ to issue a decision
without a hearing in this case. The record reflects that ample notice
of the proposal to issue a decision without a hearing was given to the
parties, a comprehensive statement of the allegedly undisputed material
facts existed and complainant had the opportunity to respond to such
a statement.
A discriminatory constructive discharge occurs when the employer,
motivated by discriminatory animus, creates working conditions that are
so difficult, unpleasant, or intolerable that a reasonable person in
complainant's position would feel compelled to resign. Doe v. Social
Security Admin., EEOC Appeal No. 01A114791 (Feb. 21, 2003). In other
words, the employee is essentially forced to resign under circumstances
where the resignation is tantamount to the employer's termination or
discharge of the employee. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d
568, 574 (8th Cir. 1997). The Commission has adopted a three-pronged
test for establishing a constructive discharge. Complainant must
show that:(1) a reasonable person in his position would have found the
working conditions intolerable; (2) conduct which constituted prohibited
discriminatory treatment created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. Greer v. United States Postal Service, EEOC Appeal
Nos. 01976756, 01976792 (Dec. 29, 2000) (citing Taylor v. Department of
Defense, EEOC Request No. 05900630 (July 20, 1990)). We find that the
AJ appropriately issued a decision without a hearing because complainant
failed to show that genuine issues of material fact exist in this case.
There is no indication in the record that complaint was subjected
to intolerable working conditions which arose out of conduct which
constituted prohibited discrimination on the basis of his disability.
Accordingly, we find that the AJ's appropriately determined that
complainant has failed to show that he was subjected to a constructive
discharge.
Now turning to claim 1, for which there was a hearing, we note that
pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In order to be entitled to protection from the Rehabilitation Act,
complainant must make the initial showing that he was a "qualified
individual with a disability." Assuming arguendo that complainant was
an individual with a disability within the meaning of the Rehabilitation
Act, we conclude that complainant has not proven, by a preponderance
of the evidence that he was a qualified individual with a disability.
A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education
and other job related requirements of the employment position such
individual holds or desires, and who, with or without reasonable
accommodation, can perform the essential functions of the position.
29 C.F.R. � 1630.2(m).
The AJ found that complainant was not a qualified individual with a
disability because he could not perform the duties of his position with
or without an accommodation. AJ Decision at 25. The AJ concluded that
the agency provided complainant with a reasonable accommodation when he
was provided an offer to work as a Clerk on the Tour III. AJ Decision
at 26. The AJ found that complainant failed to show that the physical
demands of the position on Tour III exceeded his physical capacity.
Id. at 8. Although complainant obtained a letter from his personal
physician stating that the change in work hours was intolerable, the
AJ found that the physician's letter was not credible. Id. at 14.
In so finding, the AJ determined that the physician provided no factual
support for his opinion. Further, the AJ found that, although complainant
objected to a position on Tour III, PM2 had a greater ability to create
a sedentary position consistent with complainants limitations that
performed a needed function at night, and she created a position that
involved manual sorting of the mail. Id. at 9. The AJ determined that
PM2 testified credibly that she assigned complainant to Tour III because
that is where most of the work was, and it where she had the greatest
amount of the type of sedentary work that fell within complainant's
physical limitations. Id. The AJ found that PM2 testified credibly
that the work was time-sensitive and could not have been performed the
on the day shift. Id. The AJ also determined that complainant failed
to show that a vacant, funded position with duties that he could perform
with or without an accommodation existed. Id. at 27.
We find that the AJ's determinations are supported by substantial
evidence in the record. The record reveals that complainant is not a
qualified individual with a disability. The record reflects that PM2
specifically created this Clerk assignment to fit within complainant's
medical restrictions. HT at 109. We note that an employer is not
required to create a job for a disabled employee, nor is it required to
transform its temporary light or limited-duty assignments into permanent
jobs to accommodate an employee's disability. See Mengine v. Runyon,
114 F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. United States
Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement
Guidance: Workers Compensation and the ADA, EEOC Notice No. 915.002
at 21 (September 3, 1996). It is complainant's burden therefore,
to make the showing that there was another vacant, funded position,
for which he was qualified and to which he could have been reassigned.
We find that complainant has failed to make this showing. Accordingly,
we find that complainant has failed to establish that he was entitled
to protection under the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that the
AJ's finding that complainant failed to show he was entitled to an
accommodation is supported by substantial evidence in the record.
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
October 26, 2009
Date
2
0120082275
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120082275