0120080435
03-26-2010
Jimmy Medina, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jimmy Medina,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080435
Hearing No. 460-2006-00020X
Agency No. 1G-771-0021-05
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal filed on October 29, 2007, from the agency's October 2, 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.
Complainant contacted an EEO counselor on May 4, 2005, and filed a formal
complaint on July 14, 2005, alleging that the agency discriminated against
him on the basis of disability (back condition) when his request for
permanent light duty work within his medical restrictions was denied
on April 12, 2005, and he was sent home. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On September 27, 2007, over complainant's objection, the AJ
granted the agency's motion for summary judgment and issued a decision
without a hearing, finding that the agency did not discriminate against
complainant.
BACKGROUND
Before his back surgery in October 2004, complainant worked as a Mail
Handler Equipment Operator at the agency's Houston, Texas General Mail
Facility. In February 2005, complainant filed a claim for benefits with
the Department of Labor, Office of Workers' Compensation Programs (OWCP).
When he returned to work in mid-February 2005, he requested light or
limited-duty work within his medical restrictions. The agency approved
limited duty for him on a temporary basis, pending a response from OWCP.
On April 4, 2005, OWCP denied complainant's claim. On April 5, 2006,
complainant presented new restrictions and requested a light-duty
assignment. At this time, his restrictions were no pushing, pulling,
lifting over 15 pounds, reaching above the shoulder, stooping, bending,
operating a motor vehicle, or overtime, and standing/walking limited
to 3 to 4 hours. On April 12, 2005, the agency denied his request,
stating that no work was available within his restrictions, and the
agency sent him home.
Meanwhile, a supervisor referred complainant to the agency's District
Reasonable Accommodations Committee (DRAC) to determine if complainant
required a reasonable accommodation. Complainant met with the DRAC on
May 24, 2005, and the DRAC requested that he provide updated medical
information. In June 2005, complainant submitted new medical information
showing that his medical restrictions had changed. He was now able
to lift/carry up to 30 pounds, push/pull up to 60 pounds, reach above
his shoulder up to 20 pounds, and walk and stand without limitation, but
remained restricted from stooping, bending, operating a motor vehicle, and
overtime work. The agency granted him light duty in the Flat-Prep Area,
pending a response from the DRAC. In early November 2005, complainant
submitted new restrictions under which he could push/pull up to 50 pounds,
work two hours of overtime, and operate a motor vehicle for two hours.
He also bid on a vacant Mail Handler position. On November 16, 2005, he
was awarded the bid, and assigned to the Mail Handler position without
restrictions. The DRAC closed its file in regard to complainant on
December 6, 2005.
Following the agency's motion for summary judgment and complainant's
opposition, the AJ determined that summary judgment was appropriate in
this matter, because no genuine issues of material fact were extant. On
the merits of complainant's claim, the AJ concluded that complainant did
not prove that his condition substantially limited a major life activity
and that he was not an individual with a disability. While complainant
claimed in his opposition to the agency's motion that he had trouble
sleeping, the AJ found that complainant's statement and his available
medical records were insufficient to show a substantial limitation in
a major life activity, e.g., sleeping. As to complainant's contention
that he was substantially limited in working, the AJ found that he did
not show that he was substantially limited in working other jobs.
Further, the AJ found that, even assuming, arguendo, complainant was an
individual with a disability, he did not show that he was a qualified
individual with a disability. The AJ explained that, by requesting a
"permanent" light-duty position on the day in question, complainant
was seeking a transfer to a new position within his restrictions,
but he presented no evidence showing that a position that he could
perform within his restrictions existed and was vacant and available
to him. For this reason, the AJ found that he failed to show that
he was a qualified individual with a disability. As to his claim of
disparate treatment, the AJ held that complainant did not show that he
was treated less favorably than similarly-situated employees and that
his one comparative employee was not, in fact, similarly situated to him.
CONTENTIONS ON APPEAL
Complainant tendered his brief in support of his appeal beyond the 30-day
period from the date he filed his appeal notice. His brief is untimely
and will not be considered. 29 C.F.R. � 1614.403(d). The agency, after
requesting an extension of time, submitted its comments, contending that
complainant did not provide evidence to support his claim of disability
discrimination.
ANALYSIS AND FINDINGS1
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 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 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").
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).
After a review of the record, we find that there are no genuine issues
of material facts or any credibility issues which required a hearing
and therefore the AJ's issuance of a decision without a hearing was
appropriate. The record has been adequately developed, complainant
was given notice of the agency's motion to issue a decision without a
hearing, he was given a comprehensive statement of undisputed facts,
he was given an opportunity to respond to the motion and statement of
undisputed facts, and he had the opportunity to engage in discovery.
Under these circumstances, we find that the AJ's decision without a
hearing was appropriate.
Reasonable Accommodation
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodation for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p); see generally 29 C.F.R. Part 30 and the Appendix to Part
1630-Interpretive Guidance on Title I of the Americans With Disabilities
Act; see EEOC Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans With Disabilities
Act (October 17, 2002) (Enforcement Guidance).
Assuming for the sake of argument, without so finding, that complainant
is a qualified individual with a disability, we nonetheless find that
complainant has not established that the agency denied him reasonable
accommodation. Complainant requested assignment to a light-duty position
within his restrictions. Complainant did not, however, identify any
position within his restrictions that he believed he was capable of
performing. Further, once a light-duty assignment within complainant's
restrictions became available, the agency provided complainant with a
light-duty assignment until such time as complainant bid out of that
assignment. Accordingly, we find complainant has not established that
the agency failed to provide reasonable accommodation.
Disparate Treatment
The analysis of claims of disparate treatment follows the three-step
scheme announced by the Supreme Court in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). First, the complainant must establish a
prima facie case or assuming that he has does so, the agency is required
to articulate a legitimate, nondiscriminatory reason for its actions.
To prevail, a complainant must demonstrate, by a preponderance of the
evidence, that the agency's reason(s) for its action was a pretext for
discrimination, i.e., that the agency's reason was not its stated reason
and that it acted on the basis of discriminatory animus. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981);
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Again assuming for the sake of argument, without so finding, that
complainant is a qualified individual with a disability, the agency
articulated a legitimate, non-discriminatory explanation for its actions.
The agency explained that it did not have work available for complainant
within his restrictions, and so sent him home. Complainant has not shown
that the agency's proffered explanation was a pretext for disability
discrimination; for example, complainant has not shown that work within
his restrictions was available, or that any similarly-situated employee
was allowed to remain in the workplace in the absence of a suitable
assignment.
CONCLUSION
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
order, because the AJ's issuance of a decision without a hearing was
appropriate, and the preponderant evidence of record does not establish
that discrimination occurred as alleged.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 26, 2010
Date
1 Authorities referred to in this decision, including EEOC Guidances
and appellate decisions, are available on the Commission's website at
www.eeoc.gov/federal.
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0120080435
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080435