Fred E. Assidy, III, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionAug 7, 2013
0120131724 (E.E.O.C. Aug. 7, 2013)

0120131724

08-07-2013

Fred E. Assidy, III, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.


Fred E. Assidy, III,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120131724

Hearing No. 510-2012-00215X

Agency No. 4G-335-0005-12

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 15, 2013 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

BACKGROUND

During the period at issue, Complainant worked as a City Carrier at the Agency's Pinellas Park, Florida Post Office.

On January 6, 2012, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him in reprisal for prior protected activity when:

between October 4, 2011 and November 16, 2011, he was denied a reasonable accommodation.

After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On March 5, 2013, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final action.

In her decision, the AJ found no discrimination. Without addressing the prima facie analysis, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. Specifically, the AJ found that Complainant was accommodated between October 4, 2011 and November 16, 2011. The AJ further found that the modification of Complainant's accommodation allowed him to perform duties within his physical restrictions and permitted the Agency to meet the operational needs of the service.

In reaching this conclusion, the AJ noted that on June 21, 2011, Complainant requested temporary light duty to accommodate a non-work related injury. Thereafter, the Postmaster informed Complainant that his request was incomplete and lacked medical documentation to support the request. On August 4, 2011, after receipt of the necessary information and medical documentation, the Agency provided Complainant a light duty assignment.

Pursuant to the light duty assignment sheet, Complainant would continue to work his current bid assignment as a City Carrier on Route 81035 with the following temporary medications: casing for 2 hours with a 10 pound limitation; standing for 3 hours; walking and street delivery for 6 hours; pushing/pulling/lifting no more than 10 pounds for 8 hours; and delivering mail as mode set for route. On August 4, 2011, Complainant signed the light duty assignment under protest.

On August 1, 2011, the District Reasonable Accommodation Committee (DRAC) provided Complainant with the necessary paperwork to request a reasonable accommodation. On August 3, 2011, Complainant submitted a request for an accommodation to the DRAC that he be able to deliver mail "as a dismount in areas requiring park and loop," and not use a satchel to deliver mail.1 In support of his request, Complainant provided a Duty Status Report from his doctor indicating that Complainant's chronic and intermittent back and shoulder injuries limited his ability to perform the physical requirements of his position.

The AJ noted in his July 2011 assessment, Complainant's doctor stated that the Complainant's restrictions were as follows: lifting and carrying no more than 10 pounds (8 hours); no pulling and pushing (8 hours); and no reaching above shoulder (8 hours). The AJ noted that Complainant also submitted a note from a different doctor stating that he could not use a push cart for street delivery.

The AJ noted that on August 3, 2011, as part of the interactive process, the DRAC spoke with Complainant's union representative and the Postmaster regarding Complainant's request to use dismount method of delivery for "park and loop" routes. The Postmaster stated that Complainant request to deliver "park and loop" routes by the dismount could require overtime of up to 1.5 hours.

The AJ noted that on August 10, 2011, after receiving Complainant's medical documentation, the DRAC recommended that Complainant be accommodated within his restrictions provided that he continued to meet his delivery street times. Specifically, the DRAC recommended that Complainant be allowed to dismount as needed to stay within his restrictions. However, if dismounting resulted in his inability to meet his DOIS times, his case should be returned to DRAC for further consideration. The AJ further noted that DRAC also advised Complainant that his accommodation was not guaranteed indefinitely and that circumstances could change that would render the accommodation no longer needed, reasonable or possible, or that would necessitate that the accommodation be adjusted and reassessed.

The record reflects that there were no changes to Complainant's accommodations between October 1, 2011 and November 16, 2011. On October 5, 2011, the DRAC spoke with the Postmaster regarding Complainant's accommodation and the start of the winter season. The Agency noted that the start of the winter season resulted in increased mail deliveries to the seasonal trailer park on Complainant's "park and loop" route. The Postmaster informed DRAC that using the dismount method to deliver 481 deliveries on a "park and loop" route was inefficient, and was the least productive method to deliver the mail. The Postmaster, however, identified a vacant route for Complainant to perform within his restrictions. Specifically, the Postmaster stated that deliveries on the vacant route consisted of dismount, curb line, and CBU deliveries.

The AJ noted that by letter dated November 16, 2011, the DRAC advised Complainant that it recommended a territorial adjustment be conducted to remove the "park and loop" deliveries from his route and replace these deliveries with dismount, curb line, and CBU deliveries. The AJ noted that before the route adjustment, DRAC recommended that Complainant's "park and loop" deliveries be replaced with dismount, curb line or CBU deliveries.

The record reflects that consistent with the DRAC recommendations, Complainant was relieved of the "park and loop" portion of his route and given the type of deliveries he could perform within his restrictions. The record further reflects that as a result of the modification of Complainant's accommodation, there was no change to his hours and scheduled days off.

The Postmaster stated that during the relevant period, Complainant "has never been denied in whole or in part a reasonable accommodation...[Complainant] has been accommodated since his initial accommodation in March 2011, due to not being able to carry a satchel. Then with more medical restrictions given he was accommodated further on 08/04/11. [Complainant] was allowed to dismount the park & loop deliveries on 3rd bundle days, the remainder was to be completed as a park & loop and he would carry the mail in his arm. Although [Complainant] was not following this agreement of 'Temporary Reasonable Accommodation' that he signed 'under protest' on 08/04/11. This accommodation was based on what I believed to be a temporary non-work related injury. [Complainant] stated these restrictions were permanent, and that he would not be submitting any other medical [documentation]. I (management) has been accommodating him in this office with the accommodations which were recommended by the DRAC committee [emphasis in its original]."

Further, the Postmaster stated that dismount deliveries "are the most inefficient, costly and least productive mode of delivery there is, yet sometimes it is the only way some deliveries can be made - such as businesses. Starting and stopping the vehicle and exiting from the vehicle each time a dismount delivery is made. With [Complainant] having 481 deliveries that he wishes to dismount, along with other types of deliveries - the starting of the vehicle close to 500 times in one day, him exiting from the vehicle and reentering that many times in one day would create negative impact to his body (safety issue) and to the vehicle itself. Since there are deliveries that have already been established that are within his restrictions and he can perform, and these deliveries are not assigned to another carrier (vacant route), it is only reasonable to relieve [Complainant] of the park & loop deliveries and maintain the more efficient method of delivery by giving to another employee who can conduct park & loop delivery."

Moreover, the Postmaster stated that management has accommodated Complainant "by relieving him of the 'park & loop' portion of his route, and giving him deliveries from another (vacant) route that he can perform that are within his medical restrictions. This allows the office to maintain efficiency and productivity while still accommodating [Complainant's] medical restrictions."

The instant appeal followed.

ANALYSIS AND FINDINGS

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.

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). 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 case an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). We shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability.

Complainant has not shown that the Agency discriminatorily denied him reasonable accommodation. We specifically note the AJ's determination that the Agency was in compliance with his restrictions. We note moreover, the AJ found that while the Agency temporarily allowed Complainant to use the dismount method, the Agency was not obligated to continue such accommodation in the light of the determination that the dismount delivery method was the most inefficient and least productive method of delivery.

Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination by summary judgment. Complainant has not identified any material facts in dispute which require resolution through a hearing. The AJ's decision properly summarized the relevant facts established during the investigation, and referenced the appropriate regulations, policies, and laws. Complainant did not prove, by a preponderance of the evidence, that the decisions made here were motivated by discriminatory animus toward Complainant's prior protected activity.

Based on careful review of the record and consideration of all appellate arguments, the Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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 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 (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 (Z0610)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 7, 2013

__________________

Date

1 The record reflects that "park and loops" routes requires a carrier to get out of his vehicle and walk a certain area of the route carrying a satchel, pushing a cart or carrying mail on his or her arm, the carrier parks the vehicle and delivers to a "loop" of multiple houses.

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Office of Federal Operations

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Washington, DC 20013

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