01A11149
10-31-2001
Patricia E. Erickson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia E. Erickson v. United States Postal Service
01A11149
10-31-01
.
Patricia E. Erickson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11149
Agency No. 4-J-606-0034-99
Hearing No. 210-A0-6020X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final
action concerning her equal employment opportunity (EEO) complaint of
unlawful 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 accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, we REVERSE and REMAND the agency's final
action.
ISSUE PRESENTED
The issue presented herein is whether complainant was discriminated
against on the basis of disability (Cervical Disc Disease) when she was
involuntarily placed on non-duty, non-pay status on or about November
17, 1998.
BACKGROUND
The record reveals that complainant was a Rural Letter Carrier, PS-5, at
the agency's Joliet, Illinois facility. In September 1996, complainant
filed a claim with the U.S. Department of Labor, Office of Workers'
Compensation Programs (OWCP), claiming that she was suffering from a
neck condition caused or aggravated by reaching above her head to case
mail and reaching to put mail in her box. On December 23, 1996, OWCP
notified complainant that her claim that she had sustained an on the
job injury was denied.
By letter dated January 22, 1997, complainant's physician (P-1) submitted
a letter stating that complainant had been diagnosed with Cervical Disc
Disease. P-1 noted that �given the type of work [complainant] ha[d] done
for . . . years, [she was] quite sure that these activities ha[d] caused
[complainant's] medical condition. [Because complainant] is quite short
much of her work involve[d] lifting at and above shoulder level, as well
as carrying rather heavy mail bags.� On February 7, 1997, OWCP notified
complainant that they had received P-1's letter concerning her December
1996 claim which had already been denied. OWCP directed complainant to
review her appeal rights if she wished to further pursue her claim.
On September 21, 1998, complainant filed an OWCP claim, stating that
she was suffering from a severe degenerative disc disease. The agency
placed complainant in a limited duty job assignment while her OWCP
claim was pending. The agency based complainant's limited duty job
assignment on restrictions as provided by her new physician (P-2).
Complainant answered phones and delivered express and priority mail
for approximately one month.<1> On November 6, 1998, OWCP denied
complainant's claim. The agency then determined that complainant was
no longer eligible for the limited duty job assignment under the terms
of the Labor Agreement between the agency and the National Rural Letter
Carriers' Association. On November 17, 1998, complainant's supervisor
(S-1) placed complainant in a non-duty, non-pay status until she was
able to perform the essential functions of a rural mail carrier.
Complainant filed a formal EEO complaint with the agency on December 2,
1998. At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination based on her physical impairment during the
relevant time period. The AJ found that complainant offered sufficient
evidence to show that she had a physical impairment prior to and during
the relevant time period. However, the AJ determined that the complainant
failed to identify what major life activity was substantially limited by
her Cervical Disc Disease. He noted that the most recent evaluations
provided by P-2 indicated that complainant's ability to stand, walk,
bend and lift was improving.
The AJ also concluded that, even if complainant was an individual with
a disability during the relevant time, she failed to show that (1)
she was qualified for her Rural Letter Carrier position, (2) she could
perform the position with a reasonable accommodation, or (3) she could
perform the essential functions of another position. The AJ further
determined that complainant failed to provide evidence that the agency
should have reassigned her to a different position because she failed
to identify any vacant funded position or provide sufficient medical
documentation. The AJ concluded that complainant failed to show that
the agency discriminated against her when she was placed in non-duty,
non-pay status. The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred in granting the
agency's motion for summary judgement. Specifically, the complainant
asserts that: (1) she is an individual with a disability; (2) she was
denied a reasonable accommodation prior to filing her EEO complaint;
and (3) the agency failed to discharge its obligation to engage in the
interactive process in good faith. The agency requests that we affirm
its final order.
ANALYSIS AND FINDINGS
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 does not
sit as a fact finder. Id. 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. A disputed 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, summary judgment is not appropriate.
The record needs to be adequately developed for summary disposition.
After a careful review of the record, we find that the AJ erred when he
concluded that there was no genuine issue of material fact in this case.
Complainant contends that she is a disabled employee within the meaning of
the Rehabilitation Act. The agency asserts that complainant has failed
to provide sufficient evidence to establish a substantial limitation
in a major life activity. We note, however, that the record remains
unclear as to whether complainant is substantially limited in the major
life activity of lifting. See Reid v. United States Postal Service, EEOC
Appeal No. 01995610 (February 8, 2001) . In addition, the AJ noted that
P-2's evaluations indicate that complainant is improving in her ability to
stand, walk, bend and lift, suggesting that her condition was temporary
or sporadic. However, we find that the record needs to be more fully
developed in light of the degenerative nature of complainant's disease.
On appeal, complainant also contends that the agency failed to discharge
its obligation to engage in the interactive process. In order to
determine the appropriate reasonable accommodation, the Rehabilitation Act
states that it may be necessary for the agency �to initiate an informal,
interactive process with the qualified individual with a disability in
need of the accommodation.� 29 C.F.R. � 1630.2 (o)(3). The purpose
of this process is to clarify what the individual needs and identify
the appropriate reasonable accommodation. See Enforcement Guidance,
No. 915.002, question 5 (March 1, 1999). In the instant case, the record
needs to be more fully developed to determine whether a vacant funded
position existed that would allow complainant to perform the essential
functions of the job with or without a reasonable accommodation.
The hearing process is intended to be an extension of the investigative
process, designed to �ensure that the parties have a fair and reasonable
opportunity to explain and supplement the record and to examine and
cross-examine witnesses.� See EEOC Management Directive (MD) 110, as
revised, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. ��
1614.109(c) and (d). �Truncation of this process, while material
facts are still in dispute and the credibility of witnesses is still
ripe for challenge, improperly deprives complainant of a full and fair
investigation of her claims.� Mi S. Bang v. United States Postal Service,
EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995). In summary, there are unresolved facts which require
an assessment as to the credibility of the various witnesses. Therefore,
judgment as a matter of law for the agency should not have been granted.
CONCLUSION
Therefore, after a careful review of the record, the Commission REVERSES
the agency's final order and REMANDS the matter to the agency in
accordance with this decision and the ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ordered to submit a request to the Hearings Unit of the
Chicago District Office for further processing. The agency is also
directed to submit a copy of the complaint file to the EEOC Hearings
Unit within 30 calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
_____10-31-01____________
Date
1 Complainant's limited duty job assignment was not a vacant funded
position.