Margarita Miranda, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 29, 2007
0120070165 (E.E.O.C. Aug. 29, 2007)

0120070165

08-29-2007

Margarita Miranda, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Margarita Miranda,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070165

Hearing No. 150-2006-00019X

Agency No. 4H-327-0177-05

DECISION

On October 11, 2006, complainant filed an appeal from the agency's

September 19, 2006 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 pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission affirms the agency's order.

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

complainant on the basis of disability (abdomen; major depression) when,

on or about September 8, 2005, the agency instructed her not to report

to work because no light duty work was available that she could perform.

BACKGROUND

During the relevant time, complainant worked as a Senior Mail Processor at

South Creek Post Office in Orlando, Florida. In May 2005, she underwent

abdominal surgery, a sigmoid colectomy for diverticulitis. In June 2005,

her physician (P1) indicated that complainant could lift no more than 8

pounds at one time for 8 weeks. From July 5 through September 8, 2005,

she worked with said restriction, obtaining assistance from her coworkers

when mail exceeded 8 pounds. After the 8 week period, a second physician

(P-2) imposed further restrictions for another 8 weeks to include:

no repetitive bending and no lifting more than 8 pounds.

The record reflects that, from September 8, 2005, through September 30,

2005, the agency needed to cut back on clerk hours. As a result of the

combination of the cutback on clerk hours, and complainant's light duty

status, the agency instructed complainant not to report to work due to

a lack of light duty work available within her restrictions on or about

September 8, 2005. On September 15, 2005, complainant submitted medical

restrictions indicating that she could not work because of her diagnosis

of major depression. In medical documentation dated October 13, 2005,

complainant's psychiatrist estimated that complainant would recover in

6 months or more.

On November 5, 2005, complainant applied for disability retirement.

In a letter, dated November 29, 2005, complainant's treating physician

stated that she "should not work until further notice" due to side

effects she would likely experience from her treatment for Hepatitis C.

In a letter to complainant, dated February 2, 2006, the agency explained

that complainant had been continuously absent from work since September

10, 2005. Furthermore, it informed her that, if she did not update her

medical documentation with an expected return to duty date, she would

be placed on absent without leave (AWOL) and subsequently removed.

On April 19, 2006, complainant retired on disability retirement.

On October 17, 2005, complainant filed an EEO complaint alleging that

she was discriminated against as stated above. At the conclusion of the

agency's 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.

On April 5, 2006, the agency filed a motion for a decision without

a hearing, and in a decision dated September 1, 2006, the AJ adopted

agency's motion in its entirety. Therein, the AJ found that complainant

had not established discrimination based on her alleged disabilities.

She also dismissed the complaint on the basis of mootness, reasoning

that complainant had already retired from the agency by the time the

AJ issued her decision. On September 19, 2006, the Agency issued its

final decision, implementing the AJ's finding of no discrimination.

ANALYSIS AND FINDINGS

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").

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).

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

properly issued a decision without a hearing because complainant has

failed to show that a genuine issue of material fact exists. We find

that, even assuming arguendo that complainant has established that he is

an individual with a disability,1 the agency has provided a legitimate

nondiscriminatory reason for its action that complainant has failed

to show is pretextual. United States Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of

Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson

v. Department of Health and Human Serv., EEOC Request No. 05900467 (June

8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056

(May 31, 1990). Specifically, management received a directive to cut

clerk hours from September 8, 2005, through September 30, 2005, and as a

result, no light duty hours were available for complainant to work during

this period.2 The record further reveals that, due to the combination

of the cutback on clerk hours, and complainant's light duty status, the

agency instructed complainant not to report to work due to a lack of light

duty work available within her restrictions. We note that before the

end of the cut back period, complainant submitted medical restrictions on

September 15, 2005, indicating that she could not return to work because

of her diagnosis of major depression. Complainant submitted no evidence

that the agency's reason was a pretext or a lie.

Furthermore, we note that, even if the Commission were to consider whether

the agency should have reassigned complainant to another position upon

her submitting appropriate medical documentation, complainant has an

evidentiary burden in a reassignment case to establish that it is more

likely than not (preponderance of the evidence) that there were vacancies

during the relevant time period into which she could have been reassigned.

Hampton v. United States Postal Service, EEOC Appeal No. 01986308 (August

1, 2002). In the alternative, complainant need only show that: (1) she

was qualified to perform a job or jobs which existed at the agency; and

(2) that there were trends or patterns of turnover in the relevant jobs

so as to make a vacancy likely during the time period. Id. We find that

complainant has failed to carry her evidentiary burden and identify such

a position. Accordingly, we find that complainant has failed to prove

that the agency discriminated against her when it directed her not to

return to work because no light duty work was available.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, 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

_____8-29-07_____________

Date

1 We assume without finding, for the purposes of analysis only, that

complainant is an individual with a disability as alleged.

2 We note that the agency initially accommodated complainant's

restrictions until September 8, 2005.

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0120070165

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070165