0120113064
02-07-2013
Scott Chesley, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Scott Chesley,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120113064
Hearing No. 540-2011-00049X
Agency No. 4E-840-0025-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 13, 2011 final action concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Letter Carrier at the Agency's Salt Lake City, Utah downtown station.
On July 6, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of disability (severe degenerative arthritis of both knees) and age (over 40) when:
from February 8, 2009 forward, the Agency did not provide him with a casing chair.1
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On May 2, 2011, the AJ issued a decision by summary judgment in favor of the Agency.
The AJ found that the Agency did not discriminate against Complainant based on his disability and age by denying him the accommodation that Complainant had preferred, when Agency management replaced Complainant's clerk chair (casing chair) with a stool. Specifically, the AJ determined that the Agency was not required to provide Complainant with the reasonable accommodation that he preferred as long as the reasonable accommodation which the Agency had provided was effective under the circumstances. The AJ further found that the Agency requested additional medical documentation to support Complainant's requested accommodation of a clerk chair and that the Agency expressly stated that the clerk chair would be returned if the documentation was provided. Complainant provided the requested documentation and the clerk chair was returned to him.
The AJ found that the record contains the following undisputed facts. Complainant has degenerative arthritis in both knees resulting in a rating of 9% permanent partial loss of use of the left leg. For several years prior to 2009, Complainant had been using what he described as a "clerk chair." The record reflects that the clerk chair was actually a rest bar intended for leaning, and not for sitting. In early 2009, there was a consolidation of the work area of the downtown Salt Lake City office. As carrier cases were moved, management noted that several carriers in Complainant's work area had clerk chairs. The Agency management removed all clerk chairs and replaced them with the appropriate carrier case stools. The replacement chairs were the same type of chair that Complainant had used several years earlier, prior to his obtaining the clerk chair. Complainant had broken the stool twice when he had used it several years earlier. The AJ noted that management did not give Complainant advance notice or have a discussion with him prior to replacing the clerk chair with the stool. Complainant was clearly upset when his clerk chair was removed without notice, and he immediately notified management that he needed to continue using the clerk chair.
Further, the AJ noted that evidence in the record reflects that Complainant confirmed his only medical restriction was that he be allowed to sit down intermittently while casing and take breaks every two hours based on the medical documentation he provided to management. In response to Complainant's inquiry, the Manager, Customer Services stated that the clerk chair was not safe for sitting and was therefore inconsistent with Complainant's medical restrictions. The AJ noted that the Manager, Customer Services or another named manager told Complainant that if he had a doctor's note indicating that he needed a clerk chair instead of a stool, one would be provided to him. Complainant responded that he already had a doctor's note stating that he needed to sit, and that his doctor was not a "furniture salesman."
The AJ noted in his affidavit, Complainant stated "I felt that I depended on the chair because it helped me perform my job with less pain and discomfort for the last seven or eight years. I felt it was like taking a wheelchair away from someone who is crippled or a seeing-eye dog away from someone who is blind and still expecting them to perform their usual job."
On February 19, 2009, Complainant suffered a cardiac arrest approximately one hour after hearing gunshots, yelling and running outside of the mailroom of the Federal Bureau of Investigation building where he was delivering mail. Thereafter, Complainant was off work recuperating from the heart attack until April 20, 2009.
On March 31, 2009, during Complainant's recuperation, the grievance that Complainant filed concerning the removal of the clerk chair was settled. Specifically, the Agency and union agreed to work together, in consultation with Complainant, to identify an appropriate chair to be provided by the Agency. The parties agreed that the chair must be safe for Complainant to use at the case, reasonable in cost and meet any medical restrictions. Thereafter, Complainant submitted his doctor's note dated April 15, 2009. Therein, Complainant's doctor stated that Complainant needed an adjustable clerk chair. The AJ noted that the clerk chair of the type that Complainant previously used was provided to him when he returned to work on April 20, 2009.
The record contains a copy of the Manager, Customer Services (Manager)'s affidavit. Therein, the Manager stated that during the relevant time Complainant was accommodated. Specifically, the Manager stated that Complainant was "prescribed sitting breaks as needed every one to two hours." The Manager further stated that the subject accommodations "were in place before I was placed in charge of the office. The accommodations were not reviewed with [Complainant] until the alleged incident around February to April 2009."
The Manager stated at that time Complainant was using a rest bar, not the usual carrier case stool.2 The Manager further stated "we were moving carrier cases and consolidating the work room lay out due to the recent loss of several carrier routes. The rest bars were replaced with the appropriate carrier case stools. [Complainant] stated at this time that because of his medical restrictions he needed to use a rest bar. I looked up his file and reviewed his restrictions. The only accommodation he had was that he was supposed to sit as needed every one to two hours...[Complainant] was informed that the rest bar would not meet his restrictions since it is not allowed to sit on a rest bar. The rest bar was designed for people to use by leaning against it, not sit on it. The rest bar can flip over backwards if an employee sits on it and leans back. In this case [Complainant's] use of the rest bar as a sitting stool was in violation of Postal Regulations. He was provided a stool he could properly sit on per his medical restrictions and Postal Regulations. [Complainant] provided new medical restrictions in April 2009 prescribing his use of a rest bar instead for him to lean against instead of the need to sit on a stool. At this time a rest bar was provided for him along with the training and instruction in proper use by [named acting supervisor]."
Furthermore, the Manager stated that Complainant was never denied an accommodation. Specifically, the Manager stated that Complainant's restrictions required that he be allowed to sit as needed every one to two hours and "it is against Postal Regulations for the rest bars to be used as a stool to sit on due to their tendency to tip over. He was provided the proper stool for him to sit per his medical restrictions. At no time was his medical restrictions violated."
Based on the above-described evidence, the AJ determined that no discrimination had been proven. The AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination on the basis of age and disability discrimination. The Agency fully implemented the AJ's decision in its final action.
The instant appeal followed.
ANALYSIS AND FINDINGS
AJ's Issuance of Summary Judgment
The Commission must first determine whether it was appropriate for the AJ to have granted summary judgment. 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.
There are no genuine issues of material fact or any credibility issues which required a hearing and therefore, the AJ's issuance of summary judgment was appropriate. When a party moves for summary judgment, such as the Agency did here, the non-moving party's opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. Complainant did not show that there was a genuine issue of material fact in this case, even assuming all facts in his favor, a reasonable fact finder could not find in his favor, as explained below. Thus, we find that the AJ's grant of summary judgment was appropriate.
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would case an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). We shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability.
Complainant has not shown that the Agency wrongfully denied him reasonable accommodation. Specifically, the documented medical restrictions which Complainant provided to Agency management did not make reference to a need for a particular type of chair. The Agency did not discriminate against Complainant based on his disability and age when it requested additional medical documentation and then proceeded to provide the accommodation required by the medical documentation. We concur with the AJ that the fact that while Complainant was upset his clerk chair was removed without notice, the Agency's practice was not unlawful.
Accordingly, we find that Complainant has not established that he was denied reasonable accommodation in violation of the Rehabilitation Act.
Disparate Treatment
Finally, to the extent that Complainant is alleging disparate treatment (apart from accommodation), we find that as discussed above, the Agency has articulated legitimate, nondiscriminatory reasons for its action. Further, we find the record is devoid of any evidence that Complainant's protected bases were factors in the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate that the Agency's reason were not the real reasons, and that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry this burden. Accordingly, we find that Complainant has failed to show that he was discriminated against as well.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency legitimate, nondiscriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, we AFFIRM the Agency's final action because the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
February 7, 2013
__________________
Date
1 On July 17, 2009, the Agency issued a final decision, dismissing the instant claim and three other claims for untimely EEO Counselor contact and failure to state a claim. On appeal, the Commission affirmed the Agency's dismissal of three claims. However, the Commission reversed the dismissal of the instant claim and remanded the matter to the Agency for further processing. Chesley v. United States Postal Service, Appeal No. 0120093568 (February 16, 2010). Following the Commission's decision, the Agency proceeded the remanded claim in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
2 The record reflects that the Manager used the term "rest bar" instead of a "clerk chair."
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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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