Roy C. Hubbard, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 13, 2007
0120062353 (E.E.O.C. Sep. 13, 2007)

0120062353

09-13-2007

Roy C. Hubbard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Roy C. Hubbard,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200623531

Agency No. 1H-374-0006-04

Hearing No. 250-2005-00225X

DECISION

Complainant filed an appeal from the agency's final action dated January

24, 2006, finding no discrimination with regard to his complaint. In his

complaint, dated January 12, 2005, complainant alleged discrimination

based on race (White), sex (male), and disability (back) when on November

23, 2004, he was informed that he was reassigned to mail processing

effective November 27, 2004.

Upon completion of the investigation of the complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On January

5, 2006, the AJ issued a decision without holding a hearing, finding no

discrimination. The agency's final action implemented the AJ's decision.

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.

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 reassignment.

The AJ noted that complainant had been employed by the agency since 1979

and was working as a Maintenance Mechanic at the Memphis Bulk Mail Center

when he sustained a back strain injury on October 24, 2004. On November

1, 2004, when complainant came back to work, the agency provided him with

a modified work assignment which included spending two hours at each of

the following activities: checking sorters for air leaks (first level),

checking doors (exterior) for security, checking dock doors, and repair

tipper assembles and photo cells. On November 8, 2004, complainant's

physician diagnosed acute lumbar disc disease and advised that he could

return to work on November 9, 2004, with the following restrictions:

lifting 20 pounds on hour per day; no kneeling, bending, stooping, or

twisting; standing and walking for three hours; one hour of climbing; and

three hours each of simple grasping, fine manipulation, reaching above

the shoulders and operating machinery. The same modified assignment,

described above, was offered to complainant on November 9, 2004.

The AJ, noting the fact that complainant was seen for "back pain" on

November 22, 2004, stated that complainant was clearly provided with

temporary light duty work in Maintenance until November 23, 2004. When he

continued to have medical restrictions which limited him to lifting

no more than 20 pounds for two hours, as well as other restrictions,

management gave him a modified limited duty assignment in Mail Processing

at issue. Management stated that after two weeks of complainant's duty

in Maintenance, it was determined that there was not enough work within

his medical restrictions to keep him in Maintenance full time, but Mail

Processing had a full day's work every day. Management, undisputed by

complainant, stated that they only provided long term light duty work in

Maintenance if the employee's medical restrictions allowed them to lift

at least 25 pounds. The AJ stated that complainant failed to show that

anyone outside of his protected group who was in the same job and had the

same supervisors was treated more favorably when they had a weight lifting

limitation of 20 pounds. Furthermore, despite complainant's claim that

no other employees were treated the way he was, the agency stated that at

least four other employees were also reassigned outside their department.

The agency noted that on March 25, 2005, complainant subsequently provided

medical documentation indicating he could perform the full duties of his

position for four hours per day and then limited duty the remainder of

the day where no lifting or straining was involved, but with a lifting

restriction of 35 pounds. Accordingly, on April 6, 2005, complainant

was offered a modified assignment in the Maintenance which he accepted.

Assuming (without deciding) that complainant was an individual with a

disability, the Commission finds that complainant failed to show that he

was denied a reasonable accommodation or that any agency actions were

motivated by discrimination. Complainant does not allege that he was

required to perform his duties beyond his medical restrictions.

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

09/13/2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

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0120062353

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036