0120102968
04-18-2012
Janet M. Lukawski, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Janet M. Lukawski,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120102968
Hearing No. 470-2009-00069X
Agency No. 4J-460-0111-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 20, 2010 final order concerning her equal employment opportunity (EEO) complaint alleging 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Modified Letter Carrier at the Agency's Post Office in East Chicago. Complainant suffered an on-the-job injury in August 2002. Her workers' compensation claim was accepted on December 2, 2003. As a result of her injury, Complainant's restrictions included, among other things, no lifting or carrying more than 40 pounds for 8 hours a day; no standing for more than 8 hours a day; and, no walking, climbing, bending, pulling or pushing for more than 3 hours and 20 minutes per day. Additionally, Complainant's doctor recommended that Complainant use a mail cart, although her doctor did not indicate that her restrictions would change if she did.
In accordance with its obligations under the Federal Employees Compensation Act, the Agency provided Complainant a limited duty modified assignment. In this assignment, Complainant cased mail for 2 hours and 30 minutes, delivered a portion of her route using a postal vehicle for 3 hours 20 minutes, and made a station run to a finance station for 20 minutes. Complainant would then perform "make-work" tasks such as dispatching mail and answering phones. On May 23, 2008, Complainant claims that her supervisor (S1) informed her that after the delivery portion of her assignment, there was no available work for her within her restrictions and she would be sent home before working a full 8 hours. Each time there was no available work within Complainant's restrictions, the Office of Workers' Compensation Programs (OWCP) reimbursed her for any leave she used.
On September 15, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), disability, and in reprisal for prior protected EEO activity when, ongoing since May 23, 2008, she was sent home and not allowed to work an eight hour day.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) 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 motion and issued a decision without a hearing on May 11, 2010.
Initially, the AJ assumed arguendo that Complainant is a qualified individual with a disability as defined under the Rehabilitation Act. The AJ determined that Complainant had not alleged that she was denied an accommodation; rather, Complainant claimed that she should have been given the accommodation of her choice, use of a mail cart. The AJ found that the record established that Complainant had been granted an accommodation. Specifically, the record showed that Complainant was provided a limited duty job offer, which consisted of casing mail for city routes and delivering a portion of her route using postal vehicle. Further, the Agency allowed Complainant to break down her delivery volume into two blocks instead of carrying the whole block. Complainant was only sent home when there was no available work within her restrictions when she returned from her deliveries. The AJ found that Complainant was not entitled to an accommodation of her choice nor was the Agency required to create a job for her. Further, the AJ determined that Complainant's restrictions were not such that a mail cart was required to perform her limited duty assignment. Accordingly, the AJ found that Complainant had not been denied reasonable accommodation.
Next, the AJ assumed arguendo that Complainant had established a prima facie case of discrimination on the alleged bases and found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record revealed that during the period in question, Complainant was only sent home before she could work 8 hours when there was no available work within her restrictions. Further, Complainant was not provided a mail cart because her medical restrictions did not require the Agency to provide her one. The AJ concluded that Complainant had presented no evidence that the Agency's reasons were pretextual. As a result, the AJ found that Complainant had not been discriminated or retaliated against as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing a decision without a hearing. Specifically, Complainant argues that the Agency ignored her and her doctor's requests for a mail cart. Further, Complainant alleges that the Agency failed to find adequate work within her restrictions for her in accordance with its Employee Labor and Relations Manual. Finally, Complainant argues that the AJ displayed bias during a hearing on the Agency's motion for a decision without a hearing by interrupting Complainant's attorney during his argument. Accordingly, Complainant requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission 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.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The Commission notes that when a party moves for a decision without a hearing, such as the Agency did here, the non-moving party's opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and her arguments on appeal do not undermine the AJ's determination that, even assuming all facts in her favor, a reasonable fact finder could not find in her favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Next, the Commission shall address Complainant's objections to the manner in which the AJ conducted the summary judgment hearing. Specifically, Complainant contends that the AJ was argumentative and exhibited bias by interrupting her representative's argument numerous times while only interrupting the Agency's attorney twice. The Commission notes that EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. � 1614.109; see also EEO MD-110, at 9-10. The Commission has reviewed the summary judgment hearing transcript as well as other documentary evidence in the record and is unable to find evidence of bias, or other reversible error, resulting from the manner in which the AJ managed and adjudicated this case.
Denial of Reasonable Accommodation
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) she is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) she 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 cause an undue hardship. See 29 C.F.R. �� 1630.2 (o) and (p). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is a qualified individual with a disability.
Upon review of the entire record in this case, the Commission finds that Complainant has not established that the Agency failed to provide her reasonable accommodation in violation of the Rehabilitation Act. The record reveals Complainant was provided work in accordance with her medical restrictions, with duties that included casing mail for 2 hours, delivering a portion of her route for 3 hours and 20 minutes, and making a station run to a finance station for 20 minutes. ROI, at 142. Complainant usually returned to the office about 2 hours before the end of her normal tour and, if there was no work available within her restrictions, she was sent home. Id. at 230-31. The Postmaster confirmed that each day the Agency contacted all offices within 50 miles seeking available work for limited duty employees; however, there usually was no productive work available. Id. at 236. The Manager of Post Office Operations (M1) maintained that a decrease in mail volume decreased the amount of available work for all employees, including the amount of available work within Complainant's restrictions. Id. at 249. Additionally, Complainant was reimbursed for any leave that she used when there was no available work by OWCP. Id. at 230.
The Commission notes that an employer is not required to create a job for a disabled employee, nor is it required to transform its temporary light or limited-duty assignments into permanent jobs to accommodate an employee's disability. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. U.S. Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement Guidance: Workers Compensation and the ADA, EEOC Notice No. 915.002 at 21 (Sept. 3, 1996). Complainant failed to proffer any evidence showing that there was available work within her medical restrictions on the occasions she was sent home early.
Additionally, Complainant contends that she should have been provided a mail cart pursuant to her doctor's request and had she been provided one, she would have been able to perform her duties on a regular basis. Instead of providing Complainant a mail cart, the Agency split up her mail volume into two blocks while adhering to her 3 hours and 20 minutes walking/carrying restriction. There is no evidence in the record indicating that if Complainant was provided a mail cart, she would have been able to walk and carry mail longer or that she would have been able to fully perform the duties of her position. While Complainant may not have been offered the reasonable accommodation of her preference, an employer is not required to provide the precise accommodation the employee or applicant wants, so long as the accommodation offered is an effective one under the circumstances of the situation. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Complainant has not offered any evidence that the accommodation provided to her was ineffective. Accordingly, the Commission finds that Complainant has not established that she was denied reasonable accommodation in violation of the Rehabilitation Act.
Finally, to the extent that Complainant is alleging disparate treatment and reprisal (apart from accommodation), the Commission finds that as discussed above, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Construing the evidence in the light most favorable to Complainant, the record is devoid of any evidence that discriminatory or retaliatory animus was a factor in the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry this burden. Accordingly, the Commission finds that Complainant has failed to show that she was discriminated or retaliated against as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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 (Nov. 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
April 18, 2012
Date
1 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 2008, 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.
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0120102968
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102968