0120073752
06-11-2010
Thomas R. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Thomas R. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120073752
Hearing No. 541-2007-00038X
Agency No. 4E-800-0237-06
DECISION
On August 24, 2007, complainant filed an appeal from the agency's July
25, 2007 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. The appeal and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the AJ correctly determined
that complainant failed to show that genuine issues of material fact
exists such that a hearing was warranted; and (2) whether complainant
established he was subjected to discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a City Letter Carrier at the agency's Cheyenne, Wyoming Main Post Office.
On August 26, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of disability (knees) and mental
harassment1 when, on January 11, 2000, he was removed from his route
and denied a reasonable accommodation until June 2, 2006, when he was
awarded a bid and medically released to work on Route 51.2
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. In an undated order, the AJ notified the parties
of his intent to issue a decision without a hearing. The AJ issued the
decision on July 17, 2007.
The AJ found that after complainant sustained a knee injury on May 14,
1996, he was placed on a variety of medical restrictions. AJ Decision
at 3. Complainant was offered a modified position, which he accepted in
January 1998. Id. On March 6, 1999, complainant suffered another injury
to his knee. Id. The agency offered him a Modified Letter Carrier
position which was tailored to meet his physical restrictions. Id.
On December 2001, complainant again suffered an injury to his left knee,
hips, and lower back. Id. On July 16, 2002, he underwent surgery for
those injuries. Id. On June 2, 2004, complainant again sustained
an injury and the agency provided him a position within his medical
restrictions. On June 2, 2006, complainant successfully bid for the
position of Route 51. Id. Complainant was placed into the position
once he was medically cleared for the position. Id.
The AJ found that complainant failed to show that he was an individual
with a disability. Id. at 4. The AJ found that complainant failed to
establish that he was substantially limited in any major life activity.
Id. Complainant provided affidavit testimony that he was not limited in
such a manner. Id. The AJ further concluded that prior to June 2006,
"the medical documentation and restrictions did not establish that
complainant could perform the duties of Route 51 until the medical
documentation he provided in June 2006 released him to work Route 51."
Id. The AJ concluded that "complainant provided insufficient evidence
to bring the agency's articulated, nondiscriminatory reasons for its
actions into question or to show that those reasons were a pretext to
mask intentional discrimination." Id. The AJ found that complainant
failed to establish by the preponderance of the evidence that the agency
discriminated against him as alleged. Id.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
Complainant argues that he proffered sufficient evidence to show that he
was an individual with a disability.3 Complainant offers two documents
dated August 1, 2007 and June 22, 2007, in support of his position.
The agency argues that complainant failed to establish a prima facie case
of disability discrimination or that the agency's articulated reasons
were a pretext for discrimination. The agency requests that we affirm
its final decision adopting the AJ's issuance of a decision without a
hearing.
ANALYSIS AND FINDINGS
Standard of Review
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").
Summary Judgment
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).
The record reveals that the parties received ample notice of the proposal
to issue a decision without a hearing, a comprehensive statement of the
allegedly undisputed material facts existed in the agency's request for
a decision without a hearing, there was an opportunity to respond to such
a statement, and the parties had the chance to engage in discovery before
responding, if necessary. Accordingly, we find that the AJ appropriately
issued a decision without a hearing.
We note that the AJ erred as a matter of law when he determined that
complainant failed to establish by a preponderance of the evidence
that he was discriminated against as alleged without first determining
whether genuine issues of material fact existed such that a hearing
was warranted. Anderson, 477 U.S. at 249. We also find that the AJ
erred when he employed the legal standard for a disparate treatment case.
Complainant's allegation is better framed as a reasonable accommodation
denial rather than a disparate treatment case. Nevertheless, we find
that the AJ's determination to issue a decision without a hearing in
the case is warranted based on the record.
Discrimination Claim
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. 29 C.F.R. �� 1630.2(o)
and (p).4 A reasonable accommodation may consist of modifications or
adjustments to the work environment or to the manner or circumstances
under which the position held is customarily performed that enables a
qualified individual with a disability to perform the essential functions
of that position. 29 C.F.R. � 1630.2(o)(ii).
In order to prove that the agency failed to provide him with a reasonable
accommodation, complainant "need only show that an 'accommodation'
seems reasonable on its face, i.e., ordinarily or in the run of cases."
Reasonable Accommodation Guidance, citing US Airways, Inc. v. Barnett,
535 U.S., 122 S. Ct. 1516 (2002). Once complainant has shown that the
accommodation he needs is "reasonable," "the burden shifts to the agency
to provide case-specific evidence proving that reasonable accommodation
would cause an undue hardship in the particular circumstances." Id.
Assuming, arguendo, without so finding, that complainant established that
he is a qualified individual with a disability, we find that complainant
has failed to show that the agency did not provide him with a reasonable
accommodation. In this case, complainant argues that after he was removed
from his position in 2000, he was never given "equal treatment in the
bidding process or any other." Complainant's Formal Complaint at 1.
However, we note that the Manager, Injury Compensation (MIC), provided
affidavit testimony as follows:
[T]he following statement was written on the [1998 modified job]
offer: "Although you have and gain seniority, successfully bidding on
other preferred assignments may be difficult unless the requirements
of the position are within your physical requirements, i.e. walking
standing, sitting, etc. Should you bid on another assignment, the job
requirements will be compared to your physical limitations at that time."
This statement indicates that he can still bid on routes/assignments
within his craft. [Complainant and the Union] representative signed
accepting rehab position on January 10 and 13, 1998.
MIC Affidavit at 4. In support of his position, complainant attached
to his formal complaint, a note from "President Branch 555" stating
that the former Postmaster (FPM) refused complainant's bid to Route 51
in 2001. Complainant's Formal Complaint at 3. However, complainant has
not offered any affidavit testimony to clarify this incident.5 Further,
the record reveals that complainant was offered modified job offers after
each of his injuries upon his return to work. MIC Affidavit at 3-4.
We note that while, under the Rehabilitation Act, a protected individual
is entitled to reasonable accommodation, he or she is not necessarily
entitled to the accommodation of choice. See Castaneda v. United
States Postal Service, EEOC Appeal No. 01931005 (February 17, 1994).
The employer may choose among reasonable accommodations so long as the
chosen accommodation is effective. U.S. Airways v. Barnett, 535 U.S. 391,
400 (2002). Because complainant was provided modified job offers from
2000 to 2006, we find that although these modified jobs were not the
positions preferred by complainant, the agency nevertheless provided
him with an effective reasonable accommodation. Therefore, we find
that, even taking the facts in the light most favorable to complainant,
complainant has failed to demonstrate that a genuine issue of material
fact existed such that a hearing was warranted.
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 order adopting the AJ's decision issued without a hearing.
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
June 11, 2010
Date
1 It is not readily apparent what complainant meant by this term.
2 The AJ granted complainant's February 21, 2007 request that "mental
harassment" be added to the complaint. AJ Decision at 2.
3 We note that because complainant failed to address the issue of
"mental harassment" on appeal, the Commission exercises its discretion
to review only the issue specifically raised in complainant's appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 9-10 (November 9, 1999).
4 As a threshold matter, complainant must establish that he is an
"individual with a disability." An individual with a disability is one
who (1) has a physical or mental impairment that substantially limits one
or more major life activities, (2) has a record of such impairment, or
(3) is regarded as having such an impairment. Interpretive Guidance on
Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. �
1630.2(i).
5 The record reveals that the FPM is no longer employed by the agency
and did not respond to the investigator's request for an affidavit.
ROI at 8.
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0120073752
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073752