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.
??
??
??
??
2
0120070165
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070165