Richard D. Menken, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 26, 2009
0120082275 (E.E.O.C. Oct. 26, 2009)

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

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0120082275