0120072273
08-05-2009
Robert I. Bumpus, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert I. Bumpus,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072273
Hearing No. 530-2006-00123X
Agency No. 4C-250-0061-05
DECISION
Complainant filed an appeal from the agency's final action dated March 6,
2007, finding no discrimination with regard to his complaint. In his
complaint, dated December 7, 2005, complainant alleged discrimination
based on age (over 40), disability (hearing impaired), and in reprisal
for prior EEO activity when: (1) on August 29, 2005, he was directed to
report for a fitness for duty examination on September 15, 2005; and,
(2) on September 17, 2005, his driving privileges were revoked.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On February
27, 2007, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
Initially, we note that the agency previously dismissed two other
claims, i.e., a threat of termination and privacy act violation when
complainant was forced to take a physical and reveal his medical history,
as described in claim (1), for failure to state claim, pursuant 29
C.F.R. �1614.107(a)(1). Upon review, we find that the agency's dismissal
was proper since complainant was not actually terminated and the alleged
privacy act violation was not within the scope of the EEO process.
Turning to claims (1) and (2), 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.
Despite complainant's contentions on appeal, the Commission finds that
grant of summary judgment was appropriate, as no genuine dispute of
material fact exists. In this case, the AJ determined that, assuming
arguendo that complainant had established a prima facie case of
discrimination, the agency articulated legitimate, nondiscriminatory
reasons for the alleged actions. The record indicates that at the
relevant time of the incident, complainant was employed as a data
collection technician, level 6. This position entailed driving to
various facilities to perform tests a minimum of three days per week
and as much as five to six days per week.
Complainant's manager stated that on August 5, 2005, complainant had
his third motor vehicle accident in five years while driving an agency
vehicle. Complainant acknowledged that on that occasion, he was struck
by a "hit and run" driver of a tractor trailer. The manager indicated
that complainant's accident record couple with observed difficulties
in comprehension during normal conversations led to a concern for
complainant's safety and the safety of others. The manager also indicated
that he requested that complainant be directed to undergo a fitness for
duty examination to discern/rule out a physiological cause.
The manager stated that the examining physician for complainant's
physical, described above, placed complainant on permanent restrictions
on his ability to operate a motor vehicle and to work around moving
equipment/heavy machinery. The agency indicated that its associate
area medical director reviewed complainant's neuropsychological
assessment and reaffirmed that complainant should not operate agency's
motor vehicle/heavy machinery. The agency noted that complainant was
subsequently assigned to an unassigned manual clerk, which is not an
issue in this case.1
It is noted that the Commission does not address in this decision
whether complainant is a qualified individual with a disability.
It is also noted that complainant has not claimed that he was denied a
reasonable accommodation. There is no indication that he was required
to work beyond his medical restrictions. Upon review, we do not find
any agency actions motivated by discrimination.
Accordingly, the agency's final action finding no discrimination regarding
claims (1) and (2) and dismissing the remaining claims 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
8/5/09
__________________
Date
1 The record indicates that complainant filed another complaint concerning
this assignment which is pending on appeal at this time under EEOC Appeal
No. 0120082947.
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0120072273
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013