0120070477
08-08-2008
Bridgett Wallace, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bridgett Wallace,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070477
Agency No. 4F-956-0088-04
Hearing No. 370-2006-00050X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 22, 2006 final 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.
During the period at issue, complainant worked as a part-time flexible
(PTF) clerk at the main facility in Elk Grove, California. Complainant
claimed that the agency discriminated against her on the basis of
disability (lower back injury) when, on October 15, 2003, the agency
failed to provide her a reasonable accommodation to work on light duty.1
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). On September 12, 2006, the AJ issued a
decision without a hearing, finding that the agency did not discriminate
against complainant.2
The record shows that complainant suffered an off-the-job injury to her
lower back in December 2002, and was diagnosed with a permanently-tilted
sacroiliac joint on her left side. In October 2003, she was cleared to
return to light duty work (four hours per day, restrictions on sitting,
standing, walking, bending, and stooping). The agency, through the
Postmaster (PM), explained that no work was available within her
restrictions and that employees on limited-duty already performed all
such work.
The AJ found that complainant did not establish that she was entitled
to the protection of the Rehabilitation Act, in that, she did not
show that her limitations substantially limited a major life activity.
Even assuming, arguendo, that complainant had established that she was an
individual with a disability, the record shows that she was not qualified,
in that, she could not perform the essential duties of her position or
any other position, and that no productive work was available within
her medical restrictions.3
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 of record, 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).
We consider first 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; 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. 0120024206 (July 11, 2003).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the AJ's
issuance of a decision without a hearing was appropriate, and the
preponderance of the evidence of record does not establish that
discrimination occurred.4 Accordingly, the agency final order 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
__08/08/2008________________
Date
1 The agency had previously dismissed the instant complaint, finding that
complainant's January 30, 2004, initial contact with the EEO Counselor
was untimely. On appeal, the Commission agreed that complainant's EEO
Counselor contact was untimely raised as to the claim based on sex but
that her claim based on disability constituted a request for reasonable
accommodation, which is a recurring violation that repeated each day.
Wallace v. USPS, EEOC Appeal No. 01A45428 (July 7, 2005).
2 Complainant is advised that the Commission does not entertain motions on
appeal. Also, our regulations do not contemplate filings from complainant
beyond her brief in support of her appeal. Finally, that complainant was
afforded some work through resolution of a grievance in February 2005,
does not establish that she is a qualified individual with a disability.
3 Complainant misreads the record in this matter, in that, there is no
probative evidence that the agency regarded her as an individual with a
disability; it only concluded that her limitations were "extensive."
4 For the purposes of analysis only, we assume, arguendo, that complainant
is an individual with a disability. See Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans With Disabilities Act
EEOC Notice No. 915.002 (October 17, 2002). This Guidance is available
on the Commission's website at www.eeoc.gov.
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0120070477
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070477