0120060945
04-02-2009
Deborah Orne, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deborah Orne,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120060945 (formerly 01A60945)
Hearing No. 160a50211x
Agency No. 1B-031-0014-02
DECISION
On November 15, 2005, complainant filed an appeal from the agency's
October 25, 2005 final order concerning her 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 appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
ISSUES PRESENTED
The issue on appeal is whether complainant was subjected to discrimination
on the basis of disability (circadian rhythm sleep disorder and biorhythm
disturbance) when the agency denied complainant's request for a schedule
change as a reasonable accommodation.
BACKGROUND
At all times relevant to this complaint, complainant worked as a full time
Mail Processing Clerk at the Manchester, New Hampshire, Processing and
Distribution Center on Tour 3. Complainant was assigned to Tour 3 as a
reasonable accommodation prior to the issues arising in this complaint.
Complainant asserted that working Tour 3 from 6:00 pm to 2:30 am caused
her to have a sleep disorder; specifically, a circadian rhythm sleep
disorder and biorhythm disturbance. She also stated she has depression,
light deprivation depression, and Attention Deficit Disorder, which
exacerbated her difficultly falling asleep. Further, complainant contends
that her sleep disorders caused her to be continuously late for work.
Her doctor recommended that she maintain a regular sleep schedule by
working during a day shift.
On July 31, 2001, complainant requested reassignment to Tour 2 where
she would report from 9:00 am to 5:30 pm as a reasonable accommodation.
After numerous meetings between the complainant and the agency's District
Reasonable Accommodation Committee, the agency ultimately rejected the
request on June 6, 2002.
Meanwhile, on March 25, 2002, complainant initiated contact with an
EEO Counselor. On June 6, 2002, complainant filed a formal complaint
of discrimination on the basis of disability (circadian rhythm sleep
disorder and biorhythm disturbance) when:
The agency failed to reasonably accommodate her disability when it denied
her request for a schedule change.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and over the complainant's
objections, issued a decision without a hearing on October 20, 2005.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged. Complainant now appeals to the Commission.
CONTENTIONS ON APPEAL
On appeal, complainant, through her attorney, asserts that she is an
individual with a disability as defined by the Rehabilitation Act,
and therefore is entitled to a reasonable accommodation. Complainant
alleges that she has a myriad of both physical and mental disabilities.
Specifically, complainant asserts that she has a Keloid (raised scar
tissue on her right foot) which causes her to walk with an irregular gait
and causes back pain. Complainant contends that her Tour 3 schedule has
caused her to have a circadian sleep disorder and biorhythm disturbance.
Further, complainant asserts that her sleep disorder is exacerbated by
depression, light deprivation depression, and Attention Deficit Disorder.
Complainant avers that these impairments substantially limit her mobility,
and her ability to sit, stand, focus, concentrate, sleep, and work.
The agency asserts that complainant has not provided evidence that
would establish that she has an impairment that substantially limits
a major life activity. Additionally, the agency asserts that since
complainant's sleep disorders are not disabilities as defined by the
Rehabilitation Act, the agency is not required to reasonably accommodate
her by changing her Tour 3 schedule.
ANALYSIS & FINDINGS
Initially we note that while complainant raises numerous impairments
in an attempt to establish that she is an individual with a disability,
the only impairments at issue here are her sleep disorders. The record
establishes that complainant's physical impairment caused by the Keloid
on her foot had already been reasonably accommodated by the agency
prior to this complaint when it placed her in the Mail Processing
Clerk position on Tour 3 in compliance with her physical limitations
set by her physician. Complainant does not assert that the reasonable
accommodation was ineffective. Instead, complainant is asserting that
she needs an additional reasonable accommodation because the Tour 3
schedule caused her to have new impairments, a circadian sleep disorder
and a biorhythm disturbance, which substantially limit her major life
activities of sleep and work. Therefore, we will only address these
new impairments on appeal.
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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 whether intentional discrimination occurred,
and 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").
We must first 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. Department of Defense, EEOC Appeal No. 01A24206 (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).
We agree with the AJ's decision to issue a decision without a hearing
as no genuine issue of material fact exists. After a careful review
we find the record has been adequately developed. Furthermore, the
AJ provided ample notice of the proposal to issue a decision without
a hearing to both parties, issued a comprehensive statement of the
undisputed material facts, gave both parties the opportunity to respond,
and gave both parties the opportunity to engage in discovery. Therefore,
we AFFIRM the AJ's decision to issue a decision without a hearing and
will now analyze the merits of the complaint.
Complainant has alleged that she was discriminated against on the basis of
disability in violation of the Rehabilitation Act. As a threshold matter,
complainant must establish that she is an "individual with a disability."
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
an impairment. Interpretive Guidance on Title I of the Americans With
Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
Complainant contends that she is substantially limited in her ability
to sleep. Complainant stated that her work hours coupled with her light
deprivation depression and Attention Deficit Disorder renders her a
person with a disability because it caused her to have circadian rhythm
sleep disorder and biorhythm disturbance. This makes it difficult for
her to fall asleep and stay asleep. The AJ found that complainant's
limitations did not constitute a physical or mental disability under
the Rehabilitation Act.
Complainant asserts that her work hours affect her sleep patterns.
Specifically, she is interrupted when falling asleep and sometimes does
not sleep well because of her working hours of 6:00 pm until 2:30 am.
An individual is not substantially limited in sleeping if she has trouble
getting to sleep or sometimes sleeps fitfully. See Enforcement Guidance
on the Americans with Disabilities Act and Psychiatric Disabilities
(Enforcement Guidance), No. 915.002, at Question 11 (March 25, 1997).
While complainant's ability to sleep might be affected, complainant has
not established that her ability to sleep is substantially limited.
In addition, "an inability to sleep due to [a required] unusual
schedule does not constitute a disability." Linsmeier v. Department
of Veterans Affairs, EEOC Petition No. 03960095 (September 23, 1996)
(circadian rhythm sleep disorder caused by the hours of shift work is
not a physical or mental impairment under Commission regulations); see
also Raju v. Department of Veterans Affairs, EEOC Appeal No. 01986574
(November 1, 2001) (insomnia attributed to complainant's night-shift
work schedule and job stress does not render him an individual with a
disability under the Rehabilitation Act). It is clear from the record
that complainant's doctors feel that her nighttime work hours are the
cause of complainant's trouble getting to sleep or sleeping fitfully.
In addition, there is no evidence that would indicate that the agency
regarded complainant as substantially limited in the major life activity
of sleeping. Therefore, the Commission finds that complainant is not
substantially limited in the major life activity of sleeping.
Next, complainant alleges that she is substantially limited in her ability
to work. Complainant avers that her impairments interfered with her
ability to follow a work schedule and arrive at work on time. The AJ
found that complainant failed to establish that she was substantially
limited in working.
In order to be substantially limited in the major life activity of
working, the Commission's regulations require that an individual be
restricted from performing either a class of jobs or a broad range of
jobs in various classes. 29 C.F.R. � 1630.2(j)(3)(i). The inability
to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working. There is no evidence
in the record that complainant was unable to perform either a class of
jobs or a broad range of jobs in various classes. Rather, complainant
articulated that she is able to perform the functions of her job and
it is only the hours that are a problem for her. We agree with the
AJ that complainant's limitations only prohibit her from working in
a narrow category of jobs, i.e., jobs that require a late-night shift.
See Dean v. Westchester County, 390 F.Supp. 2d. 587 (S.D.N.Y. 2004) (while
the employee's inability to work overnight hours is an impairment, it is
not substantial since the employee can still work). Complainant failed
to establish that her impairments substantially limit her in the major
life activity of working. Therefore, we find that complainant is not
substantially limited in the major life activity of working.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS the
agency's final decision finding no discrimination.
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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
April 2, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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