0120080977
10-14-2015
Collin R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Collin R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120080977
Hearing No. 541-2007-00099X
Agency No. 4E-800-0030-07
DECISION
Complainant timely filed an appeal from the Agency's November 13, 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 Commission accepts the appeal 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 whether the Administrative Judge properly issued a decision without a hearing, and whether the Administrative Judge properly found that Complainant was not an individual with a disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency's Valmont Station in Boulder, Colorado. On December 22, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (bi-lateral ankle condition) when, on various dates since August 29, 2006, he has not been accommodated with a chair, and after filing an EEO complaint, was told that if he wanted a chair he could go to a special area everyday he was on a given route and check-out a chair.
At the conclusion of the investigation, the Agency provided Complainant 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.
The Agency filed a Motion for a Decision without a Hearing on August 10, 2007. Complainant objected to the Agency's Motion on August 27, 2007. The Agency submitted a Reply to Complainant's objection on September 6, 2007. Complainant further replied to the Agency's Reply in Support of their Motion for a Decision without a Hearing on September 10, 2007. The Agency filed a Motion to Strike the Complainant's September 10, 2007 Reply, arguing that the Complainant had not sought leave from the AJ to file such a Reply.
On October 30, 2007, the AJ issued a decision without a hearing. In his decision, the AJ found that there were no genuine issues of material fact, and that a decision without a hearing was appropriate. The AJ stated that he considered all the submissions from both parties, thereby denying the Agency's Motion to Strike Complainant's Reply of September 10, 2007. The AJ found that Complainant had established that he is a disabled veteran with a permanent bi-lateral ankle condition for which he had received a 20-percent disability rating from the Department of Veterans Affairs. Medical documentation submitted by Complainant at the time of his accommodation requests stated that he had "chronic left foot pain due to soft tissue stress and moderate tendinitis" with "possible stress fracture of cuboid foot bone" and that he was wearing "orthotics to control motion when pivoting around foot." It recommended "light duty activities up to 8 hours or 10 hours maximum on left foot to help control pain and inflammation." Additional documentation stated that he had "chronic left foot pain from soft tissue stress and multiple ankle surgeries bilateral." It also stated that "patient should have normal working hours on feet but not required to work extra on days off from work to rest his feet." Complainant asked to be provided a stool on October 18, 2006, and on November 30, 2006, in a meeting with the Postmaster. The Postmaster agreed in the November 30, 2006, meeting that Complainant could utilize a stool while casing mail, and that he could retrieve it from a holding area when assigned to a particular route where the regular carrier did not wish to have a stool in her area. In medical documentation dated July 31, 2007, offered at hearing, Complainant was said to have left and right ankle degenerative joint disease with osteochondral defect which limits his ankle motion. It advised that Complainant should rest his feet at frequent intervals and use his orthotics, and stated, "He has been in constant pain that substantially limits major life activities. He has not been able to walk long distance or stand for long periods of time because of this pain."
The AJ found that Complainant had not established that he was an individual with a disability at the time of his accommodation requests in 2006. Complainant did not show that he was substantially limited in a major life activity, and neither doctor's note from 2006 described how Complainant's major life activities were impaired as a result of his bi-lateral ankle issues. The AJ noted that the Complainant's August 27, 2007, response to the Agency's Motion for a Decision without a Hearing contained a "more complete history of his medical issues going back to 1995, when he was hired with the restrictions of no prolonged walking, no working on uneven surfaces and no climbing." The AJ found that, at the time of his accommodation requests, Complainant made use of orthotics in his shoes, a mitigating measure that had to be considered when evaluating whether Complainant is an individual with a disability. When examining Complainant's updated July 31, 2007, medical documentation, the AJ found that Complainant had not explained how the major life activities of walking and standing were affected, how he has been substantially impaired, what specific restrictions were placed on his work or activities, or what was meant by the phrases "long distances" or "long periods of time." The AJ agreed with the Agency that Complainant's 20-percent disability rating from the Department of Veterans Affairs, without more, was insufficient to establish that he was an individual with a disability under the Rehabilitation Act. Therefore, the AJ concluded that Complainant had not established that he "was covered by the Rehabilitation Act at the time he first requested a stool in the late summer or early fall of 2006, which is the relevant period of examination in this case."
The AJ went on to caution the Agency, however, that although Complainant was not covered under the Rehabilitation Act in 2006, the Agency "would be well advised to keep open the possibility that Complainant's impairment may in the future substantially impair a major life activity thus bringing him under coverage thus requiring the Agency to provide reasonable accommodation." He also voiced his opinion that Complainant's request for a stool was a "nominal request" and one that did not appear to be an undue hardship given that denial of the request was based on the preference of the regular carrier not to have a stool in her work area. He stated that the Agency's explanation for its failure to provide a stool for Complainant was "hardly a sufficient explanation or adequate legal position for meeting the undue hardship requirement." Additionally, he found the Agency's actions to be "disturbing and reprehensible," and that it was "unconscionable" that Complainant was forced to bring an EEO complaint over something as simple as providing a stool.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In his contentions on appeal, Complainant argues that he disagreed with the AJ's issuance of a decision without a hearing. He states that he has continued to request a stool as an accommodation and that the Agency was ignoring his doctor's instructions to sit while casing mail. He argues that his walking ability is "severely limited" and that his ongoing requests were being disregarded.
The Agency submitted a statement in opposition to Complainant's appeal in which it argues that the AJ's decision on Complainant's status as an individual with a disability at the time of his requests for a stool in 2006, and his decision finding no discrimination, should be upheld.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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").
ANALYSIS AND FINDINGS
Decision without a hearing
We must 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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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).
In the instant case we find that the AJ's decision to issue a decision without a hearing was appropriate as there were no material facts in dispute such that the AJ would need to resolve those disputes through the taking of evidence or observation of witnesses. The AJ viewed the evidence in the record at the time of his decision in the light most favorable to Complainant, and drew all inferences in Complainant's favor.
Individual with a Disability/Reasonable Accommodation
This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
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). To be entitled to a reasonable accommodation, Complainant must first show that he is an individual with a disability, within the meaning of the Rehabilitation Act. 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 impairment. 29 C.F.R. � 1630.2(g).
Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. � 1630.2(i).
An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner, or duration under which an individual can perform a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability to perform the major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id.
We find that the AJ properly analyzed the medical documentation as it applied to Complainant at the time of his requests for reasonable accommodation in 2006, and properly concluded that Complainant had not established that he was an individual with a disability as defined by the Rehabilitation Act. The AJ noted that while "the nature and extent of Complainant's impairments have changed over time," Complainant did not demonstrate that he was substantially limited in 2006 in the major life activities of standing or walking. His medical documentation at that time did not support a conclusion in that regard. As noted above, the AJ found that Complainant had not explained how the major life activities of walking and standing were affected, how he had been substantially impaired, what specific restrictions were placed on his work or activities, or what was meant by the phrases "long distances" or "long periods of time."
While we are constrained from finding that the Agency failed to accommodate Complainant because the AJ properly determined that Complainant was not covered by the Rehabilitation Act at the pertinent time, we reiterate and join in the AJ's comments regarding the Agency's response to Complainant's very modest request for accommodation:
"Providing a stool to Complainant at his work area for his use appears to be a nominal request and one which does not appear to be an undue hardship in this case. The Agency's only explanation for not providing a stool to Complainant without checking it out from an equipment room was the preference from the regular carrier who did not want a permanent stool in her work area. Hardly a sufficient explanation or adequate legal position for meeting the undue hardship requirement. [sic] Setting aside the legal analysis for a moment I find the Agency's actions in this case disturbing and reprehensible. The fact that Complainant must get to the point of filing an EEO complaint resulting in a lengthy and time consuming investigative and hearing process in order to simply obtain unfettered access at his temporary work station to a stool without so much as a facially supportable business explanation from the Agency is frankly unconscionable. The Agency is well advised to monitor this situation to insure it is meeting its obligations under the Rehabilitation Act both now and in the future and is responsive to possible changes in Complainant's medical impairments and requests for reasonable accommodation."
CONCLUSION
Based on a thorough review of the record and the contentions of the Complainant on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, which implemented the AJ's finding that Complainant did not establish that he was discriminated against as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 14, 2015
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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