01a52897
07-06-2005
Ronald J. Hertrich, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald J. Hertrich v. United States Postal Service
01A52897
July 6, 2005
.
Ronald J. Hertrich,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52897
Agency No. 1C-152-0038-03
Hearing No. 170-2004-00392X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful 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.
The record reveals that complainant, a Mailhandler at the agency's
Pittsburgh Bulk Mail Center, filed a formal EEO complaint dated October
21, 2003, alleging that the agency discriminated against him on the
basis of disability (right shoulder/arm) when: (1) since January 30,
2003, complainant was denied overtime; (2) complainant was not given
a job offer; and (3) complainant's Family Medical Leave Act (FMLA)
was used without his consent.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On February 4, 2005, the AJ issued a decision without a
hearing, finding no discrimination.
With regard to issue (3), the AJ dismissed this issue for untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The AJ noted
that in issue (3), complainant was claiming the agency subjected him to
discrimination when the agency recorded his absence during recuperation
after his surgery, March 12, 2003, through July 11, 2003, as FMLA.
The AJ found that complainant did not initiate EEO Counselor contact
until September 11, 2003, which is beyond forty-five (45) days from the
alleged discrimination described in issue (3)
With regard to the remaining issues, the AJ concluded that complainant
failed to establish that he was a qualified individual with a disability.
Specifically, the AJ found that complainant has not shown that he has an
impairment which substantially limits a major life activity. The AJ noted
that in addition to working full time, complainant is able to engage
in a wide range of physical daily activities including a wide range of
household chores and manual and other tasks of central importance to
most people's daily lives. The AJ found that complainant's performance
of limited duty work and inability to perform heavy and medium types
of manual tasks at his facility does not preclude him from performing
a broad range or class of jobs.
The AJ additionally found that had complainant been a qualified individual
with a disability, he failed to show that he was treated differently
than similarly situated individuals outside his protected class. The AJ
noted that complainant cited other employees with and without physical
limitations who were permitted to work overtime on Tour II, the tour
to which he was assigned. The AJ noted that complainant acknowledged
that these individuals primarily performed overtime work which required
lifting over ten pounds, loading and uploading heavy objects and mail on
the loading docks and operating forklifts, all of which complainant was
unable to do. With regard to complainant's claim that he was entitled to
perform his limited duty work on overtime, the AJ stated that complainant
is not entitled to have overtime work created to meet his restrictions.
The AJ noted that there was no allegation that the alleged comparatives
had restrictions which limited them from performing duties requiring heavy
lifting and loading when on overtime, or that they were paid overtime
only to perform the types of limited duties complainant could perform.
Thus, the AJ found complainant was not similarly situated to the cited
employees. With regard to complainant's claim that he was denied a
permanent rehabilitation job, the AJ stated that even if complainant was
a qualified individual with a disability, he would not be entitled to
an accommodation of his choice, but to a reasonable accommodation that
enabled him to work in a full time position with the agency.
Assuming that complainant established a prima facie case of
discrimination, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ noted that Person
A, Manager, Distribution Operations, testified that complainant was
not denied overtime work which was available within his restrictions.
In addition, the AJ noted that Person A provided evidence that the agency
could use FMLA leave in complainant's situation since the FMLA permits
employers to count absences due to work related injuries as FMLA leave
and complainant was out of work due to a serious condition which required
an extended absence of two months. Finally, with regard to issue (2),
the AJ found the agency articulated that it accommodated complainant
with a light duty position.
On February 10, 2005, the agency issued a final order fully implementing
the AJ's decision. Complainant makes no new contentions on appeal,
and the agency requests that we affirm its final order.
The Commission's regulations allow an AJ to issue a decision without a
hearing when 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, a
hearing is required. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without a hearing only
upon a determination that the record has been adequately developed
for such disposition. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Further, construing the evidence to be most favorable to complainant, we
note that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes. With regard to issue (1), we note that complainant
does not challenge the AJ's conclusion that the individuals identified
as performing overtime primarily performed overtime work which required
lifting over ten pounds, loading and uploading heavy objects and mail
on the loading docks and operating forklifts, all of which complainant
acknowledged that he was unable to do. Further, we note in his deposition
complainant stated that since returning from his surgery he has worked
full-time and has worked approximately one-hundred seven hours of overtime
since January 2003. Upon review, we find complainant failed to establish
that the agency discriminated against him with regard to overtime.
With regard to issue (2), we concur with the AJ's finding that complainant
failed to establish that the agency violated the Rehabilitation Act
with regard to his request for the reasonable accommodation. We agree
with the AJ's finding that the agency provided complainant with a
limited duty position in accordance with his restrictions. There is no
evidence that the limited duty position was an ineffective accommodation.
The Commission has stated that the agency is not required to provide
the reasonable accommodation that the employee wants. The employer may
choose among reasonable accommodations as long as the chosen accommodation
is effective. Thus, we concur with the AJ's finding that complainant
was not discriminated against by the agency.<1>
With regard to issue (3), we find that this issue was properly dismissed
for untimely EEO Counselor contact. The record reveals that complainant
is challenging the agency's use of FMLA leave without his permission
for the period of May 12, 2003, through July 11, 2003. The record also
reveals that complainant did not initiate EEO Counselor contact until
September 11, 2003, which is beyond the applicable limitations period.
On appeal, complainant failed to present an adequate explanation to
warrant an extension of the applicable limitations period.
Accordingly, the agency's final action is AFFIRMED.
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 (S0900)
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 (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
July 6, 2005
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.