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that based on this documentation, which he stated superceded previous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.