0120072427
07-01-2009
Rose M. Ross, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rose M. Ross,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072427
Hearing No. 120-2005-00599X
Agency No. 4K210001605
DECISION
On April 26, 2007, complainant filed an appeal from the agency's March
28, 2007 final order concerning her 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
In 2000, complainant was diagnosed as having wrist tendonitis. As a
result, she was assigned a limited duty1 Window Clerk position at
the agency's Eastpoint Mall facility in Baltimore, Maryland. At the
time, complainant's physical limitations were lifting 20 to 40 pounds
intermittently, with no lifting over 40 pounds.
On or about May 2004, complainant was diagnosed with carpal tunnel in both
hands and thoracic outlet syndrome in her right shoulder. On October 21,
2004, complainant submitted to her supervisor a new set of restrictions
from her physician which explained that she was limited from lifting
more than 5 pounds at a time, engaging in fine manipulation for more
than 2 hours a day, or from reaching above her shoulders.
On October 21, 2004, complainant's supervisor offered complainant a
limited duty assignment at the Highland Post Office in Baltimore,
Maryland, which required complainant to hand out caller mail,
clear cameras, and sell stamps intermittently for 2 hours per day.
The assignment did not require complainant to lift more than 5 pounds.
Complainant accepted the position.
Complainant stated that the assignment exceeded her limitations because
it required her to reach above her shoulders and involved heavy lifting.
Complainant asked her supervisor if she could have a reasonable
accommodation in the form of assistance in pushing a moving cart and
assistance in reaching for items above her shoulders. The supervisor
told complainant that a supervisor would push the cart for her, and a
box clerk was assigned to help her reach for items above her shoulders.
On November 26, 2004, complainant's supervisor requested that complainant
travel to the Eastpoint Mall facility to help for two hours because the
office was busy. When complainant complained about having to travel, the
supervisor rescinded his request. Complainant asserts that the request
was discriminatory because it was beyond her medical restrictions.
Later that same day, complainant was told to weigh parcels at the Highland
Post Office. Complainant's supervisor asserts that each box weighed
no more than 3 to 4 ounces, and the scale weighed less than a pound.
Complainant told her supervisor that weighing the parcels were beyond her
restrictions. Complainant's supervisor stated that if she was unable to
perform the required duties that were within her restrictions, she would
have to relocate to another position. Complainant was subsequently
offered a job at the Main Post Office window. Complainant accepted
the position.
Soon after, complainant requested a month off to make childcare
arrangements. During that time, complainant requested to be returned
to the Highland Post Office. Complainant was offered a position that
entailed the same duties that complainant previously had in that facility.
Complainant accepted the position.
On February 15, 2005, complainant filed a formal EEO complaint of
discrimination on the basis of disability (bi-lateral carpal tunnel
syndrome) when:
1. On October 21, 2004, she was given a modified job beyond her medical
limitations; and
2. On November 26, 2004, she was assigned duties at the Eastpoint Mall
office beyond her medical restrictions.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's motion for a decision without a hearing
and issued a decision without a hearing on March 15, 2007, finding that
complainant failed to establish by a preponderance of the evidence that
discrimination existed. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that she was
subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
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).
As a preliminary matter, we agree with the AJ's determination that
there were no material facts in dispute, and that a hearing in this
matter was therefore unwarranted. In the present case, we find that the
record was adequately developed for the AJ to issue a decision without a
hearing. The parties were given ample notice of the proposal to issue a
decision without a hearing, provided with a statement of the allegedly
undisputed facts, given opportunity to engage in discovery concerning
such a statement, and the opportunity to respond.
Dismissal
In claim 2, complainant alleges that she was discriminated against when
she was assigned to work at the Eastpoint Mall facility for one day
because they were busy. The record establishes that when complainant
complained about having to travel to the Eastpoint Mall facility, the
supervisor rescinded the request. Complainant never actually worked
that day at the Eastpoint Mall facility. EEOC Regulation 29 C.F.R. �
1614.107(a) (1) provides that an agency shall dismiss a complaint that
fails to state a claim under � 1614.103 or � 1614.106(a). The Commission
finds that the complaint fails to state a claim under the EEOC regulations
because complainant failed to show that she suffered harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). As a result, this claim is dismissed.
Reasonable Accommodation
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodation for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p). For purposes of further analysis, we assume without so finding,
that complainant established that she is an individual with a disability
and is entitled to coverage under the Rehabilitation Act.
In the present case, the record reflects that the agency accommodated
complainant's medical condition in accordance with the limitations
provided by complainant's physician by placing her in limited duty
positions with duties within her restrictions. Further, the record
establishes that complainant requested assistance with moving a cart
and reaching for objects above her shoulders, which the agency promptly
accommodated. The record does not contain any indication that complainant
requested any additional accommodation that she was denied. Therefore,
we determine that the agency acted in good faith to provide complainant
with reasonable accommodation to address her known disabilities.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision because a preponderance of the evidence of record does
not establish that discrimination occurred as alleged.
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
July 1, 2009
Date
1 Limited duty is provided only for employees who have physical
restrictions that result from work-related injuries.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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