Brenda Ward, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 10, 2005
01a50783 (E.E.O.C. Mar. 10, 2005)

01a50783

03-10-2005

Brenda Ward, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Brenda Ward v. United States Postal Service

01A50783

March 10, 2005

.

Brenda Ward,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A50783

Agency No. 1A-106-0020-00

Hearing No. 160-A1-8616X

DECISION

Complainant filed a timely appeal from an agency's September 23, 2004

notice of final action concerning her complaint of unlawful employment

discrimination in violation of the Age Discrimination in Employment

Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq.

Complainant filed a formal complaint of discrimination dated July 24,

2000, alleging that she was subjected to discrimination on the bases

of age (12/23/50) and disability (herniated disc in back/pinched nerve

in neck) when: on January 22, 2000, complainant was informed �not to

return to work� because the agency would not provide her work within

her limitations. Following the completion of the investigation of her

complaint, complainant requested a hearing on the complaint before an

EEOC Administrative Judge (AJ).

On May 25, 2004, the AJ issued a Notice of Intent to Issue a Decision

Without a Hearing to which both parties responded. On September 20,

2004, the AJ issued a decision without holding a hearing, finding no

discrimination. The AJ stated assuming arguendo that complainant is

a qualified individual with a disability, the agency has articulated

a legitimate non-discriminatory reason for its action. The AJ noted

that on January 11, 2000, complainant submitted medical documentation

indicating that she could not push, pull, stoop, bend, sit, twist, walk

or use her right or left hand moderately or intermittently. The AJ noted

that based on this documentation, which he stated superceded previous

medical documentation stating that complainant could perform all of the

above mentioned duties, but not repetitively, complainant was issued

a letter terminating her light duty assignment based on the severity

of the restrictions. The AJ found there was no evidence that there

were any positions available which did not require the use of either

the right or left hand. The AJ noted that the agency subsequently

requested complainant to submit updated medical documentation on March

7, and again on April 3, 2000, which she failed to do. Further, the AJ

noted that complainant failed to report for a scheduled Pre-Disciplinary

Interview (PDI) on September 26, 2000, and was issued a Notice of Removal

effective January 5, 2001, which was sustained at a grievance proceeding.

The AJ found that complainant failed to cooperate with the agency in

determining whether she was capable of performing work with or without

a reasonable accommodation and therefore the agency was not obligated

to accommodate her. The AJ noted that despite her claim that updated

medical documentation was provided to the Office of Workers' Compensation

(OWCP), the record shows that complainant did not provide the medical

information directly to the agency as instructed. Further, the AJ noted

that complainant first submitted medical documentation to the OWCP on

May 4, 2000, despite such information being requested as early as March

7, 2000. The AJ found that complainant failed to show similarly situated

individuals were treated differently, as there was no evidence that the

individuals cited failed to cooperate with the agency in determining

whether a reasonable accommodation was warranted. The AJ found that

there is no evidence to support complainant's allegation that she was

discriminated against based upon her age or disability.

The agency issued its notice of final action on September 23, 2004,

implementing the AJ's decision.

Complainant filed the present appeal challenging the agency's final

action. Complainant disputed the AJ's statement that she failed

to provide the necessary medical information directly to the agency.

She claims that she provided medical documentation to the agency as part

of the workers' compensation claim that she had filed. She stated that

it was her belief that all of the medical documentation sent to OWCP

would be forwarded to the agency's Senior Manager, Distribution Operation.

In response to complainant's appeal, the agency argued that the AJ

correctly found that it was not obligated to provide complainant

an accommodation based on her failure to provide requested medical

documentation. The agency noted that complainant failed to provide

any evidence that she submitted the requested medical documentation

to the agency. The agency argues that complainant's claim that she

submitted some documentation to an individual in the injury compensation

office with regard to her compensation claim does not absolve her of her

responsibility to correspond with her superiors. The agency states that

complainant has failed to provide any evidence that she was not allowed

to return to work because of age discrimination. The agency states that

it is clear that her assignment was terminated because complainant sent

the agency a medical evaluation which prevented her from performing any

work at the facility. The agency notes that thereafter she failed to

respond to its request for medical updates.

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.

After a careful review of the record, the Commission finds that the

grant of summary judgment was appropriate, as no genuine dispute of

material fact exists. We find that the AJ's decision properly referenced

the appropriate regulations, policies, and laws. In the present case,

complainant was placed in light duty status for over a year as a result of

a traumatic injury she suffered. In January 2000, complainant provided

two statements from her doctor, one stating that she could not push,

pull, stoop, bend, sit, twist, walk or use her right or land hand

moderately or intermittently and another letter stating that she could

not perform the same tasks repetitively. On January 21, 2000, the agency

terminated complainant's light duty assignment based on the severity

of her restrictions. The record reveals that the agency subsequently

requested updated medical documentation on March 7, 2000, and April 3,

2000, to determine if there was work available within her restrictions.

Complainant failed to respond to both requests and was subsequently

issued a Notice of Removal. We find that there was nothing improper

about the agency's action in this regard as an agency is permitted to

request medical documentation from employees in this situation, and

is not required to provide an accommodation if the employee refuses

to provide the relevant medical documentation. See EEOC Enforcement

Guidance on Reasonable Accommodation and Undue Hardship Under the

Americans with Disabilities Act, EEOC Notice No. 915.002 at question 6

(Oct. 17, 2002). Although complainant claims that she provided updated

medical documentation to the OWCP, we note that the record does not show

that complainant provided the medical information directly to the agency

as instructed. Thus, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus

toward her protected classes.<1>

Accordingly, the agency's final order finding no discrimination is

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

March 10, 2005

__________________

Date

1The Commission does not address in this

decision whether complainant is a qualified individual with a disability.