0120090671
08-29-2011
Thomas P. Kyu, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Thomas P. Kyu,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120090671
Hearing No. 520-2008-00445X
Agency No. 1A-113-0019-08
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s October 29, 2008 final order concerning
his 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. For the
following reasons, the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Processing Clerk at the Processing and Distribution Center
in Brooklyn, New York. On April 12, 2008, Complainant filed a formal
complaint alleging that the Agency discriminated against him on the
basis of disability when his request for light duty was denied and he
was denied eight hours of work per day.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant’s objections,
the AJ assigned to the case granted the Agency’s motion and issued a
decision without a hearing on October 20, 2008.
The AJ found that on, or about March 12, 2008, Complainant underwent
a cardiac catheterization procedure. Following the procedure,
Complainant’s doctor provided him with a note, asking the Agency to
put him on light duty for one month and limited the amount of weight he
could lift to 10 pounds. Complainant submitted a light duty application
to management on March 12, 2008. Complainant’s manager (M1) approved
Complainant’s request and allowed him to work six-hour days until
April 19, 2008. Complainant signed the application, acknowledging the
temporary accommodation the Agency granted him.
On April 7, 2008, Complainant submitted documentation from his doctor
confirming that he could return to full duty. Between March 11 and
April 5, 2008, Complainant worked 19 six-hour shifts and designated
the remaining two hours of each day as sick leave. The Agency was
forced to limit Complainant’s hours because of the significant
decrease in the mail volume at the facility. In addition, the last two
hours of Complainant’s tour included “heavy work” which exceeded
Complainant’s 10-pound lifting restriction. As a result, the Agency
was unable to provide work beyond six hours each day.
The AJ determined that Complainant’s impairment was of short duration
with no long term effects or severe impact. Therefore, the AJ found that
Complainant’s impairment was a temporary condition that did not rise to
a level of a disability under the Rehabilitation Act. As Complainant does
not have a substantial limitation in a major life activity, he is not an
individual with a disability. As a result, the AJ found that Complainant
had not established a prima facie case of disability-based discrimination
and therefore had not shown that he was discriminated against as alleged.
The Agency subsequently issued a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that he is an individual with a
disability as defined under the Rehabilitation Act. Further, Complainant
alleges that the light duty position he performed was the same as his full
duty assignment. Accordingly, Complainant requests that the Commission
reverse the final order.
ANALYSIS AND FINDINGS
Decision without a Hearing
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which required
a hearing and therefore the AJ's issuance of a decision without a hearing
was appropriate. The Commission concludes that, even assuming all facts
in favor of Complainant, a reasonable fact finder could not find in his
favor, as explained below. Therefore, no genuine issues of material
fact exist. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.
Denial of Reasonable Accommodation
The Commission notes that 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 cause an undue hardship. See 29 C.F.R. §§�
�1630.2 (o) and (p). The Commission shall assume without deciding (for
the purposes of this decision) that Complainant is an individual with
a disability and a qualified individual with a disability.
The Commission finds that Complainant has not established that the Agency
denied him reasonable accommodation in violation of the Rehabilitation
Act. The record indicates that Complainant was provided a light duty
assignment in accordance with his restrictions in the 030/040 Operation.
ROI, at 232. Complainant’s lifting restriction prevented him from
performing the final two hours of the shift which included heavy lifting
to clean out the cases, close out, and dispatch. Id. at 233. Further,
the Agency had experienced a decrease in mail volume. Id. at 242. As a
result, the Agency had no work available for Complainant and granted
him sick leave each day for the remaining two hours of his shift until
his restrictions were lifted. ROI, at 259. The Commission notes that
Complainant is entitled to an effective accommodation, but not necessarily
the accommodation of his choice. Complainant has not offered any evidence
that the accommodation granted to him was ineffective nor has he alleged
that he was forced to work outside of his restrictions. Accordingly,
the Commission finds that Complainant has not demonstrated that he was
denied reasonable accommodation.
Further, to the extent that Complainant is alleging disparate treatment
(apart from accommodation), the Commission finds that as discussed above,
the Agency has articulated legitimate, nondiscriminatory reasons for its
actions. Because the Agency has proffered legitimate, nondiscriminatory
reasons for the alleged discriminatory event, Complainant now bears
the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc.Sec. Admin., EEOC Request
No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing
that the Agency’s proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. Construing the
evidence in the light most favorable to Complainant, the record is devoid
of any evidence that discrimination was a factor in the Agency's actions.
At all times, the ultimate burden of persuasion remains with Complainant
to demonstrate by a preponderance of the evidence that the Agency's
reasons were not the real reasons, and that the Agency acted on the basis
of discriminatory animus. Complainant has failed to carry this burden.
Accordingly, the Commission finds that Complainant has failed to show
that he was discriminated against as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record 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 (Nov. 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
August 29, 2011
Date
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0120090671
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090671