Evon Ridley, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.

Equal Employment Opportunity CommissionApr 18, 2007
0120054585 (E.E.O.C. Apr. 18, 2007)

0120054585

04-18-2007

Evon Ridley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.


Evon Ridley,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Capital-Metro Area),

Agency.

Appeal No. 01200545851

Hearing No. 120-A4-0561X

Agency No. 1K-234-0058-03

DECISION

On June 15, 2005, complainant filed an appeal from the agency's May

4, 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 for the

Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the

following reasons, the Commission AFFIRMS the agency's final order.

At the time of events giving rise to this complaint, complainant was a

Mail Processing Clerk, PS-5, at the agency's Processing and Distribution

Center in Norfolk, Virginia. On May 30, 2003, complainant contacted an

EEO Counselor, and subsequently filed a formal EEO complaint on August

2, 2003 alleging that she was discriminated against on the basis of

her disability when, during 2003, the agency denied her reasonable

accommodation request to be transferred from Tour 3 to Tour 2.2

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. Over complainant's objections, the AJ assigned

to the case granted the agency's April 28, 2004 motion for a decision

without a hearing and issued a decision without a hearing on May 2,

2005, finding no discrimination.

In his decision, the AJ found the following: complainant has suffered

from glaucoma and recurrent iritis (afflictions that affect vision)

since June 15, 1998. Initially, complainant requested a change from

Tour 13 to Tour 2 as a reasonable accommodation, on the basis that she

required routine eye drop administration. The agency denied the request,

allegedly because of insufficient medical documentation. Complainant

subsequently provided additional medical documentation, and on June 7,

1999, requested a light duty assignment and a schedule change to Tour 2.

On June 17, 1999, the agency approved the light duty request for 30

days, with the probability of renewal every 30 days. The agency denied

complainant's request to change to Tour 2, but offered her a change to

Tour 3. Complainant chose to remain on Tour 1. Complainant was granted

light duty for the specific period of August 10, 1999 through September

10, 1999, with the ability to renew every 30 days.

The AJ further found the following: on September 24, 1999, complainant

again requested a change to Tour 2 for a different reason; namely,

her eye condition precluded her from driving in the dark. In response

to the request, the agency examined her for fitness for duty, and then

granted her request. Specifically, on February 19, 2000, complainant

was assigned to light duty4 on Tour 2 so that she could commute during

daylight hours. The assignment to Tour 2 was authorized to last until

May 18, 2003, however, on January 7, 2003, the Manager of Distribution

Operations on Tour 2 removed all manual operations from Tour 2, including

complainant's temporary light duty assignment. Effective January 18,

2003, those manual operations scheduled on Tour 2 were reassigned to Tours

1 and 3, allegedly for reasons related to operational efficiency. At that

point, complainant again requested reassignment to Tour 2 as a reasonable

accommodation because she could not safely drive at night. The agency

did not grant complainant's request to work on Tour 2. The Reasonable

Accommodation Committee convened and searched for any vacant, funded

positions available within the area in which complainant was willing

to commute, 30 miles. Complainant rejected all options within the 30

mile radius that she herself had set, and ultimately, the Committee was

unable to find any agreeable opportunities for complainant. The members

of the Reasonable Accommodation Committee also asked complainant if she

would like them to look into public transportation for her however,

complainant did not accept this offer. Complainant then requested

assignment to temporary light duty on Tour 3, and this was approved.

The AJ assumed without deciding, that complainant was an individual

with a disability under the Rehabilitation Act. He further found that

complainant was not a "qualified" individual with a disability. The AJ

found that complainant could not perform the essential functions of her

bid position, and has failed to identify any vacant, funded positions

anywhere in the agency which she could have filled. The AJ noted that the

agency had no obligation to offer complainant anything other than vacant,

funded positions. The AJ then concluded that viewing the evidence in

the light most favorable to complainant, the agency cannot be found to

have violated the Rehabilitation Act. 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.

On appeal, complainant's principal contention is that the AJ erred in

determining that complainant's reasonable accommodation request was to

be assigned to a vacant, unfunded position. Complainant explains that

what she requested was a schedule change as a reasonable accommodation

and not a change in her job duties. Complainant also requests that

the Commission accept new evidence in the form of photographs which

allegedly show that due to the agency's decision to move complainant's

duties off of Tour 2, mail is backlogged. Complainant also requests

that the Commission consider "new and material evidence", in the form

of emails between the MDO and a Labor Relations Specialist regarding the

decision to move manual operations off of Tour 2, as well as the impact

on light and limited duty employees. Complainant contends that these

emails illustrate that limited and light duty employees were discriminated

against when they were intentionally targeted to be moved to Tour 3.5

In its Opposition brief, the agency contends that complainant ignores

the fact that the work for which she sought a schedule change was a light

duty assignment, not a funded position. The agency argues that it was not

obligated to continue to provide light duty on any Tour to complainant.

The agency further argues that even assuming arguendo that light duty

work were deemed a permanent funded position, which it is not, those

NIXIE duties no longer exist on Tour 2. Therefore, to assign complainant

light duty on Tour 2 would impose an undue hardship on the agency since

mail would be delivered later than necessary and outside the agency's

standard service commitments.

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. In this case,

a decision without a hearing was appropriate.

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). Initially, we note that the agency does not have to bump an employee

from a job in order to create a vacancy; nor does it have to create a

new position. See EEOC Enforcement Guidance ("Guidance") on Reasonable

Accommodation and Undue Hardship under the Americans with Disabilities

Act, No. 915.002, at Question 24 (rev. October 17, 2002). An agency

also is not required to provide the specific accommodation requested but,

rather, may choose among reasonable accommodations as long as the chosen

accommodation is effective.6 See Guidance, at Question 9. As part of

the interactive process, an agency may offer alternative suggestions for

reasonable accommodations and discuss their effectiveness in removing the

workplace barrier that is impeding the individual with a disability. Id.

Initially, we find that there is no dispute that complainant could not

perform the essential functions of her bid position.7 Complainant could

perform the light duty assignment the agency offered her. However, in

January 2003 the agency had moved the light duty assignment off Tour 2.

The light duty assignment was available on Tours 1 and 3. We find that

complainant's request for a shift change in order to remain working Tour

2 would not have been an effective accommodation because there was no

longer any light duty work available on Tour 2. The agency made an

effort to identify other accommodations for complainant however, she

rejected the overtures. Under these circumstances, we decline to find

a violation of the Rehabilitation Act.

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

AJ's decision without a hearing was appropriate, as no genuine issue

of material fact is in dispute. See Petty v. Department of Defense,

EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the

agency's final order.

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

April 18, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2 Tour 3 is considered an evening shift, with hours of approximately 2:30

p.m. to 11:00 p.m. Tour 2 is considered a day shift, with approximate

hours of 6:00 a.m. to 2:30 p.m. See Report of Investigation (ROI),

Affidavit F, at 4.

3 Tour 1 is considered the late shift, with hours of approximately 10:30

p.m. to 6:00 a.m. See ROI, Affidavit F, at 4.

4 The AJ noted that complainant's light duty assignment was unofficially

called NIXIE mail. He stated that the record shows that NIXIE mail

is the manual process of completing partial addresses and repairing

damaged mail.

5 The new evidence provided by complainant, as well as the agency's

responses, has been reviewed by the Commission. We note that although the

emails between the MDO and the Labor Relations Specialist could arguably

support a disparate treatment claim, the instant complaint is limited to a

claim of failure to provide complainant with a reasonable accommodation.

6 In the context of job performance, an "effective" accommodation means

that the reasonable accommodation enables the individual to perform the

essential functions of the position. See Guidance.

7 Complainant states that she could not lift or bend because this

would cause pressure differentials within her eyes, subjecting them to

further damage. Complainant additionally states that the essential job

functions of a mail clerk include bending down to place trays in the

proper equipment.

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0120054585

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036