0120064818
05-30-2008
Brenda J. Scicchitano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brenda J. Scicchitano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200648181
Hearing No. 160-2006-00099X
Agency No. 4B-140-0045-05
DECISION
Complainant filed an appeal from the agency's final action dated July 18,
2006, finding no discrimination with regard to her complaint. In her
complaint, complainant alleged discrimination: based on disability
(back) when on May 31, 2005, she was found medically unsuitable for the
position of Part-Time Flexible (PTF) Clerk at the Canandaigua, NY Post
Office; and in reprisal for prior EEO activity when her written request
for reconsideration of the May 31, 2005 decision was not processed or
recognized.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On July
12, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged actions. The AJ noted that
on February 4, 2005, complainant was hired for the PTF Clerk position
pending a medical examination. The agency's physician (Dr. A) conducted
a physical examination of complainant which included evaluation of her
medical records from her personal physician, and discovered that she
suffered from among other things, a chronic, degenerative back condition.
Dr. A rated complainant as a "moderate risk," and recommended that she
avoid lifting more than 40-50 pounds and prolonged or repeated bending
or twisting at the waist.
The AJ stated that the essential functions of the PTF Clerk position
included heavy lifting of up to 70 pounds, moderate carrying of 14-44
pounds and repeated bending; thus, complainant was not qualified for
that position. Complainant claimed that she previously worked at a
Contract Postal Station and she performed duties as an Emergency Medical
Technician (EMT) volunteer. However, the AJ stated that Dr. A fully
considered complainant's work history when she compared her knowledge
of the PTF Clerk's duties to complainant's previous job duties at a
Contract Postal Station and as an EMT volunteer. Dr. A found that the
PTF Clerk job was substantially more physical in nature than complainant's
previous jobs. Furthermore, upon analysis of complainant's MRIs, x-rays,
and complainant's own physician's notes, Dr. A determined that the PTF
Clerk job would likely aggravate complainant's back condition and would
put her at risk for future injury within six months. The AJ stated
that the agency properly relied on Dr. A's thorough and individualized
assessment of complainant when it found that she was not qualified for
the position at issue. Based on the foregoing, the AJ determined and we
agree that complainant was not a qualified individual with a disability.
Complainant claimed that on June 6, 2005, she appealed the agency's
decision denying her the position at issue but she did not receive
a formal response from the agency until August 8, 2005. The agency
stated that between these time periods, Dr. A was corresponding with
complainant's physician about complainant's medical suitability for
the job. The AJ stated that complainant received the official notice
of May 31, 2005, rescinding the position at issue and on June 1, 2005,
the parties participated in a mediation session concerning that matter.
The AJ found, and we agree, that the agency did reconsider their decision
by treating the June 1, 2005 mediation session as an appeal of the
initial unsuitability determination.
The Commission finds that complainant failed to show that any agency
action was motivated by discrimination. Furthermore, complainant failed
to provide any evidence that she can perform the essential functions of
the position at issue (with or without accommodation) or that there is a
vacant funded position for which she can perform the essential functions
thereof with or without reasonable accommodation.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
5/30/2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120064818
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036