0120093572
11-25-2009
Tommie L. Ewing, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tommie L. Ewing,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093572
Agency No. 4F-956-0054-06
Hearing No. 550-2009-00039X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 4, 2009 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against him on the
bases of disability (paranoid schizophrenia) and in reprisal for prior
EEO activity when:
on February 10, 2006, after he was offered a PS-3 Custodial position, the
offer was withdrawn, and subsequently, he was not hired for the position.
The record reflects that complainant sought employment with the agency.
On July 13, 2005, complainant was notified that he had been rated
eligible for the position of Custodian and Laborer, Custodial. The record
reflects that complainant submitted an application for employment dated
August 19, 2005.1 In his application, complainant checked the "no"
box in response to the question of whether he had ever been convicted of
a crime. Complainant also signed a document on August 19, 2005 stating
that he understood that all portions of the employment applications must
be completed accurately, that he understood question 7a specifically
concerning disclosure of a criminal conviction, and that falsification
could result in dismissal from the agency. Complainant was given a
conditional offer of employment and was given a medical questionnaire to
complete by a named registered nurse (RN). Following his completion of
the questionnaire, the RN interviewed complainant. The record reflects
in his questionnaire, complainant had stated "no" to questions concerning
his mental health conditions. The record further reflects that during
his interview with RN, complainant acknowledged that he did not answer the
questions truthfully concerning his mental health condition and treatment.
As part of the post-offer medical assessment, the agency had a named
physician (P1) to conduct a physical examination and risk assessment
and notified complainant on September 6, 2005 that he was scheduled for
an examination on September 9, 2005. The record reflects that in his
report, P1 stated that complainant's chronic intermittent left knee pain
was of concern because it persisted 13 years after the initial injury.
P1 stated that in his opinion, even if the work restrictions he specified
could be arranged, complainant would be at an increased risk of injuring
his left knee within the next six months.
Based on P1's assessment of complainant's knee condition, the agency
notified complainant that he had been determined to be medically
unsuitable for the subject position because his medical condition
was not compatible with the strenuous activities of the position.
The record reflects that complainant filed an EEO complaint alleging
that he was discriminated against when the agency rejected him for the
subject position. The record reflects thereafter, complainant and the
agency entered in a settlement agreement dated November 2, 2005, in
which complainant agreed to provide a medical report from his physician
and ask for reasonable accommodation; and that the agency would review
the report and consider him for the Custodian position if he was able to
perform the specific duties. The record reflects that pursuant to the
settlement agreement and following the Department of Veterans Affairs
(VA) release of complainant's medical records on December 19, 2005,
the District Reasonable Accommodation Committee evaluated complainant's
medical records. The agency issued a Notice of Personnel Action for
the Custodian position to be effective February 18, 2006 and instructed
complainant to report for orientation and training on February 21, 2006.
The record reflects that on February 10, 2006, the Manager, Personnel
Services (M1) sent complainant a letter informing him that pursuant to the
Postal Services policies, the job offer was being withdrawn because his VA
records showed he had not provided accurate and truthful information on
the medical questionnaire about his treatment for mental or psychiatric
problems in the past 10 years. On February 13, 2006, complainant sent a
letter admitting that he had not answered the questions truthfully about
his condition, asking for reconsideration and attempting to justify his
inaccurate answer. On February 21, 2006, M1 asked the Inspection Service
to do a criminal check on complainant. The record reflects that the
Postmaster notified M1 that complainant had been sentenced to one day in
jail and one year of probation for a misdemeanor theft charge in 1987,
which contradicted his denial on his application that he had ever been
convicted of a crime.
Following the investigation into his formal complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On May 27,
2009, the AJ issued a decision by summary judgment in favor of the agency.
On June 4, 2009, the agency fully implemented the AJ's decision in its
final action.
The AJ found that complainant did not show by a preponderance of the
evidence that he was discriminated against on the bases of disability
and prior protected activity.2 Specifically, the AJ concluded that
complainant's offer was withdrawn because he did not provide truthful
answers to permissible questions that he was asked during the hiring
process.
The AJ noted that according to M1, she stated that on March 8, 2006,
the RN provided her "with the nature of the medical questions that
were asked the complainant during the interview process and on the
eMAP questionnaire. The information provided only addressed the areas
where she believed there were discrepancies provided by [Complainant]."
M1 further stated that complainant "was screened out after the job offer
due to information that related to his suitability for postal employment.
This decision was solely based on the complainants failure to provide
truthful information regarding medical information and his criminal
history."
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.
Complainant, on appeal, argued that the AJ was biased when she
persuaded the agency "to submit a Summary judgment in the midst of
a settlement agreement. This was very unusual and biased statement.
This all happened on January 22, 2009 during the telephone conference
as the Agency Attorney was offering me settlement. This was very
disturbing to me, because the Agency withdrew the offer the next day."
Complainant further argued that the agency has provided "retaliatory and
discriminative" reasons, through pretext and erroneous speculations of
why the offer of employment was withdrawn." We determine that the agency
properly conducted an adequate investigation of the instant complaint.
We further determine that complainant has offered no persuasive arguments
on appeal regarding the AJ's decision to issue a decision without a
hearing, or regarding the AJ's findings on the merits.
Therefore, 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 action, 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 unlawful discrimination occurred.
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
November 25, 2009
__________________
Date
1 The reflect reflects that the application date was later changed to
February 7, 2006.
2 For purposes of analysis only, and without so finding, the Commission
presumes that complainant is an individual with a disability within the
meaning of the Rehabilitation Act.
??
??
??
??
2
0120093572
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093572
6
0120093572