0120090109
02-13-2009
William L. Wimbush, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William L. Wimbush,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090109
Hearing No. 430-2008-00019X
Agency No. 4K-270-0076-07
DECISION
Complainant filed an appeal from the agency's final action dated August
28, 2008, finding no discrimination with regard to his complaint.
In its final action, the agency identified complainant, a former agency
employee as Supervisor, Customer Service, EAS-17, at the Spring Valley
Post Office in Greensboro, North Carolina, as alleging discrimination
based on disability (lumbar strain) when:
(1) On March 9, 2007, he was reassigned to the Spring Valley Station;
(2) On March 22, 2007, he was reassigned to the Greensboro Processing
and Distribution Plant Computer Forwarding Center (CFS);
(3) On an unspecified date, his manager did not return his leave slips
in a timely manner and the forms were backdated;
(4) On April 13, 2007, his duty hours were changed;
(5) On April 13, 2007, his manager said, "I don't want you here, I don't
want you here;"
(6) He was charged Absent Without Official Leave (AWOL) from April 28
through May 1, 2007;
(7) On May 21, 2007, he was issued a letter of warning for "failure to
follow instructions/unacceptable performance;" and,
(8) On May 17, 2007, management wrote him up for working in an unsafe
manner.1
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On August
18, 2008, 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. Upon review, we find that,
assuming arguendo that complainant had established a prima facie case
of discrimination, the agency articulated legitimate, nondiscriminatory
reasons for the alleged actions. The record indicates that prior to
the alleged incidents, complainant was involved in a vehicle accident
on November 24, 2006. As a result, he sustained temporary back injuries.
With regard to claim (1), the identified Manager, Customer Service,
EAS-22, Injury Compensation, stated that she was responsible for assigning
complainant from the Hilltop Station to the Spring Valley Station as an
accommodation to his temporary medical restrictions. She indicated that
her decision was based on complainant's previous request for a detail,
and she believed that he would be successful as a retail supervisor, which
would be better suited for his restrictions. The Postmaster stated that
the alleged reassignment was his decision with input from the foregoing
Manager and also complainant's present manager and due to the needs
of the agency. The Postmaster indicated that during the relevant time
period at issue, there were seven or eight vacant supervisor positions
in the city of Greensboro and he was trying to help the stations that
had vacant positions. He also believed that this reassignment was
good for complainant since when supervisors seek an OIC assignment,
they were usually not considered unless they had finance experience,
i.e., in a retail unit.
With regard to claim (2), complainant's present manager, Customer
Service, EAS-21, at the Spring Valley Post Office, stated that she
reassigned complainant to the CFS from 2:00 p.m. - 6:00 p.m. because
complainant informed her that he could only work four hours a day due
to his medical restrictions. Although complainant wanted morning work
hours, she stated that she needed him at the station in the evening and
complainant accepted the assignment.
With regard to claim (3), complainant indicated that he submitted a leave
request on April 7, 2007, and the manager did not get back to her until
June 2007. The manager denied and did not recall the alleged delayed
response.
With regard to claim (4), the manager denied the alleged incident.
Specifically, the manager noted complainant was given the work hours
stated on a March 12, 2007 Assignment Order. The record contains a copy
of the Assignment Order signed by complainant.
With regard to claim (5), the manager stated that at the relevant time,
complainant told her that he did not want to work at the Spring Valley
Station. The manager also stated that in response to that comment,
she merely acknowledged to complainant that she did not want him to work
here if that was not where he wanted to work.
With regard to claim (6), the manager admitted that complainant was
charged with the alleged AWOL, but it was, subsequently, settled and was
taken out of his record. On appeal, complainant does not contest this.
With regard to claims (7) and (8), the manager stated that she issued
complainant the alleged letter of warning because during the relevant time
period, he failed to check the vehicle he was responsible and failed to
make sure it was secured. The manager indicated that another employee
found the keys in the ignition of the vehicle. In addition, complainant
left unsecured money orders on the top of a trash can in his office and
they were found by a night custodian. On appeal, complainant does not
contest these.
Upon review, we find that complainant failed to rebut the agency's
legitimate, nondiscriminatory reasons for the alleged actions. Assuming
(without deciding) that complainant was an individual with a disability,
we find that complainant failed to show that he was denied a reasonable
accommodation or that any agency actions were motivated by discrimination.
Despite his claim that he was reassigned to harder work, complainant
does not allege that he was required to perform duties beyond his
medical restrictions. Furthermore, despite his claim that he was not
provided with his choice of accommodation, he failed to prove that the
accommodation offered by the agency was not effective.
Accordingly, the agency's final action is AFFIRMED.
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
2/13/09
__________________
Date
1 We note complainant does not challenge the definition of the issues
identified by the agency.
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2
0120090109
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013