0120072694
11-30-2007
Louise J. Spalding, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Louise J. Spalding,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072694
Agency No. 1H302005306
Hearing No. 410200700113X
DECISION
On May 16, 2007, complainant filed an appeal from the agency's April 12,
2007, final order concerning her equal employment opportunity (EEO)
complaint claiming 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).
On June 19, 2006, complainant contacted an EEO counselor, and on September
11, 2006, complainant filed a formal EEO complaint claiming discrimination
on the basis of disability (diabetes) when she was assigned to Tour 1,
on June 9, 2006, and not provided a reasonable accommodation to remain
on Tour 2, per her medical requirements. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The agency filed a Motion for summary judgment, and, over complainant's
objection, the AJ issued a decision without a hearing on April 4, 2007.
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.
Previous to the events giving rise to this complaint, complainant
was as a Tour 2 mail processor working an AFSM-100 machine at the
agency's North Metro P&DC, North Metro, Georgia. In about June 2006,
the agency eliminated clerk craft assignments to AFSM-100 machines and
reassigned the affected operators to Tour 1. The agency explained that
an upgrade in technology changed the craft assignment for the machine
operations from clerks to the mail handler craft. Complainant received
her letter on June 7, and her reassignment was effective June 10, 2006.
To stave off a move to Tour 1, complainant requested a reasonable
accommodation1 to remain on Tour 2 and took leave until June 19, 2006,
when she was directed to report to Tour 2.2 As of the AJ's decision on
April 4, 2007, she has continued to work on Tour 2. The record is not
clear whether complainant's request for a reasonable accommodation was
granted; however, a facility senior manager stated that in December 2006,
she granted complainant's request for a change to Tour 2.
The AJ found initially that complainant did not meet the criteria for
coverage under the Rehabilitation Act, in that, she did not show that she
was an individual with a disability; nevertheless, he also found that the
agency did not fail to provide her reasonable accommodation, since she
was assigned to Tour 2, and the request for reasonable accommodation was
made after the event of her reassignment, on June 19, 2006. He further
found that, even assuming that she was an individual with a disability,
she did not show that she was treated differently or that she was singled
out from among the nearly 100 other machine operators, all of whom were
reassigned to Tour 1 because their machine operator jobs were abolished.
Standard of Review and Summary Judgment
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony, 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. See 29
C.F.R. � 1614.405(a); EEOC Management Directive 110, Chapter 9, �
VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56, and 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). The AJ may properly issue a decision
without 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). We agree with the
AJ's determination that a summary judgment decision was appropriate in
this matter.
Claim Based on Disability
Under the Commission's regulations, federal agencies may not discriminate
against qualified individuals with disabilities and are required
to make reasonable accommodation for the known physical and mental
limitations of qualified individuals with disabilities, unless it can
show that reasonable accommodation would cause an undue hardship.3 29
C.F.R. � 1630.4; see also 29 C.F.R. � 1630.9; 29 C.F.R. � 1630.15(d).
As a threshold matter, a complainant claiming discrimination based on
disability must show that s/he is an individual with a disability within
the meaning of the Rehabilitation Act. An individual with a disability
is one who has, has a record of having, or is regarded as having an
impairment that substantially limits one or more major life activities.
29 C.F.R. � 1630.2(g). Major life activities include caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. � 1630.2(i). For purposes
of further analysis, we will assume, arguendo, without so finding, that
complainant established that she is an individual with a disability and
is entitled to coverage under the Rehabilitation Act.
In the matter before us, complainant contended that she was not provided
a reasonable accommodation from June 10-21, 2006, while she remained
off work until the agency provided her work on Tour 2. On appeal, she
contended that she gave the agency notice of her condition in December
2005; however, complainant did not request a reasonable accommodation
at that time. The record indicates that she requested a reasonable
accommodation on June 19, 2006, and that her assignment to Tour 2 was
granted. Therefore, we agree with the AJ and find that complainant
was provided a reasonable accommodation to remain working on Tour 2
and that she is not entitled to reimbursement for leave. Based on a
thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we find that the AJ properly
issued a decision without a hearing and that complainant has not shown
that the agency discriminated against her based on her disability.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
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
____11/30/07______________
Date
1 Complainant submitted several statements from her doctor that her
condition required work on Tour 2, because it provided for optimal
management of her condition and that her condition was under control,
and she is able to work a full schedule and was not incapacitated.
2 Complainant sought reimbursement for leave taken in June 2006.
3 See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act (October 17, 2002).
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0120072694
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072694