07a30137_r
04-27-2004
Robert Barnett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert Barnett v. United States Postal Service
07A30137
April 27, 2004
.
Robert Barnett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A30137
Agency No. 1-F-941-0083-01
Hearing No. 370-A2-2266X
DECISION
Concurrent with its September 15, 2003 final order, the agency timely
filed the captioned appeal which the Commission accepts pursuant to 29
C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) summary judgment decision finding
that the agency discriminated against complainant on the basis of his
disability. The agency also requests that the Commission affirm its
rejection of the AJ's order to award complainant front and back pay,
with interest and benefits, compensatory damages, and attorney's fees
and costs, including witness fees.
Complainant, a Tractor Trailer Operator employed at the agency's San
Francisco, California, Processing & Distribution facility, filed a formal
EEO complaint with the agency on July 25, 2001, alleging discrimination on
the bases of disability (post-operative residuals of excision of a brain
tumor, to include reactive airway disease, vasomotor rhinitis and related
conditions) and in reprisal for prior EEO activity. Complainant stated
that his medical condition makes him extremely sensitive to tobacco smoke,
affects his breathing and sinuses, and causes headaches and vomiting;
and that the agency agreed to provide him with a smoke-free tractor
trailer as a reasonable accommodation. Complainant claimed, however,
that as of March 2000, the agency permitted other employees to smoke
in his truck, although the agency procured a smoke-free tractor trailer
designated for his use.
At the conclusion of the investigation, the agency provided complainant
with a copy of the investigative report and requested a hearing before
an AJ. On August 1, 2003, the AJ rendered a summary judgment decision
in favor of complainant, awarding him the aforementioned remedies,
after conducting a two-day hearing on the issue of damages.
The AJ found that complainant established a prima facie case of
disability discrimination. The AJ determined that complainant was
substantially limited in the major life activities of breathing, eating,
sleeping and concentrating when exposed to an environment containing
tobacco smoke. The AJ found that complainant's reactions were severe
(headaches, vomiting, shortness of breath, chest tightness, nasal and
sinus congestion), and that these reactions incapacitated him for days.
In reaching this conclusion, the AJ rejected the agency's arguments
that avoiding tainted environments was, in effect, a mitigating measure,
and that his impairment could not be considered a disability because he
experienced no symptoms when in a smoke-free environment. The AJ also
found that complainant's disorder was not temporary. The AJ noted that
complainant always experienced these symptoms when exposed to tobacco
smoke, rejecting the agency's contention that complainant's symptoms
were only triggered by the cab of his truck. The AJ determined that
complaint's lack of symptoms outside of work were attributable to
his diligence of staying clear of tainted environments. The AJ also
determined that the agency did not dispute that complainant was qualified
to operate a tractor trailer, and so concluded that complainant is a
�qualified individual with a disability� entitled to the protection of
the Rehabilitation Act.
Next, the AJ determined that the agency failed to provide complainant with
a reasonable accommodation for his disability. The AJ found that the
agency obtained a new truck for complainant in early 2000, designated
to be smoke-free. The AJ found, however, that the agency then failed
to insure that the truck would be maintained as a smoke-free vehicle.
In particular, the AJ found that management officials failed to act
when complainant reported that co-workers smoked in his truck, and
that complainant became so ill, he had to use sick leave and eventually
stop working. The AJ determined that workers who identified themselves
as smokers used complainant's truck, and that some of them smoked in
the truck or observed someone else smoking in the truck, but that
management officials failed to instruct any of the drivers not to
smoke in complainant's truck. The AJ found that the agency's denial of
these findings did not create a dispute of material fact or question of
credibility. Specifically, the AJ determined that agency records confirm
assignment of complainant's truck to smokers, and that complainant,
�who was the person best able to determine whether his truck smelled of
smoke� confirmed the presence of smoke odor. The AJ also rejected the
agency's argument that maintaining complainant's truck as smoke-free
is not practical, noting that the standard is not �impracticality�
but �undue hardship.� The AJ found that upon providing the truck, the
agency only needed to take a few simple steps to maintain the vehicle
as smoke-free, such as advising drivers not to smoke in the truck,
and labeling it as smoke-free. However, the AJ noted that instead of
doing so, management officials simply denied that anyone had smoked in
the truck.
Based on the above analysis and facts, the AJ rendered a summary judgment
decision in favor of complainant, and awarded him the above described
remedies. The agency's final order rejected the AJ's decision and the
agency then filed the instant appeal.
On appeal, the agency argues that the AJ erred in finding there were no
material facts in dispute. The agency contends that there is a genuine
issue of material fact as to whether complainant's reaction to tobacco
smoke constitutes a legal disability. The agency asserts that the medical
evidence shows that complainant experiences a temporary aggravation
when exposed to smoke and fumes, which ceases when the exposure ceases,
apparently disputing that complainant is not substantially impaired in
a major life activity as a consequence. The agency argues that the AJ
failed to take this into consideration and failed to assess the highly
limited and situational nature of complainant's symptoms in her disability
analysis.
Additionally, the agency argues that although complainant believed that
others were smoking in his truck, no one who tested the truck detected
the odor of smoke. The agency claims that the AJ improperly found that
complainant's supervisors failed to insure that complainant's truck
was maintained as smoke-free given the lack of evidence as to smoke
odor in the truck. The agency acknowledged that one of the smokers
who drove complainant's truck admitted to smoking in it; however, the
agency stated that this was the only occasion that such an incident
occurred, and that management addressed this incident immediately.
The agency argues that all of the supervisors, and most of the workers,
were aware that complainant's truck was smoke-free, and abided by that
restriction, arguing that the AJ erred when she found otherwise.<1>
The agency avers that the AJ improperly weighed the evidence and made
credibility determinations in reaching these conclusions.
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.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
As a threshold matter, the Commission notes that a complainant alleging
that he was subjected to disability-based discrimination or harassment
must establish that he is an �individual with a disability� within the
meaning of the Rehabilitation Act. An �individual with a disability� is
one who: (1) has a physical or mental impairment that substantially limits
one or more major life activities; (2) has a record of such impairment;
or (3) is regarded as having such an impairment. 29 C.F.R. �1630.2(g).
Major life activities include, but are not limited to, caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. �1630.2(i). A �qualified�
individual with a disability is one who satisfies the requirements for
the employment position he holds or desires and can perform the essential
functions of that position with or without reasonable accommodation.
29 C.F.R. �1630.2(m).
After a careful review, we concur with the agency that the AJ improperly
concluded that there was no genuine issue of material fact in this
case.
The Commission agrees with the AJ that there appears to be no dispute
that complainant's disorder is permanent in nature. However, we
find that it is a matter of dispute as to whether complainant is an
individual with a disability. The evidence of record fails to show
whether complainant is �substantially limited� in a major life activity.
Accordingly, we find that the AJ improperly issued a summary judgment
decision finding that complainant established a prima facie case of
disability discrimination.
Moreover, there is an issue as to whether complainant was provided with
a smoke-free truck, we concur with the agency that the record contains
numerous inconsistent statements in this regard. Complainant is adamant
that co-workers smoked in his truck, while the agency vigorously
denies it. We determine that the AJ improperly assumed that simply
because smokers were scheduled to drive complainant's truck meant that
these individuals actually smoked in the truck. The agency also claims
that its measures to ensure that other employees would not smoke in
complainant's truck were nearly 100 percent successful, with a single
exception, which it immediately addressed. Accordingly, we determine
that a hearing is necessary to assess the credibility and reliability
of witness statements, and that summary judgment was not appropriate.
Therefore, after a careful review of the record, the Commission VACATES
the AJ's decision and the agency's final order, and REMANDS the matter
to the agency for further processing in accordance with this decision
and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's San Francisco
District Office the request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue
a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and
the agency shall issue a final action in accordance with 29 C.F.R. �
1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the
date you filed your complaint with the agency, or filed your appeal
with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
April 27, 2004
__________________
Date
1The agency further disputes the AJ computation of damages in its appeal.
However, in light of our determination herein to remand the complaint
for a hearing, we do not address the issue of damages.