0120103656
08-24-2012
Daniel J. Lopez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Daniel J. Lopez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120103656
Hearing No. 480-2009-00426X
Agency No. 1F-938-0001-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 5, 2010 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Our review is de novo. For the following reasons, the Commission VACATES the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Data Conversion Operator at the Agency's Remote Encoding Center (REC) in Selma, California. Agency management at Headquarters decided to close the Selma REC by November 14, 2008. Career employees were reassigned based on seniority. After it was discovered that the original commuting area did not offer sufficient residual positions for the placement of all career employees, the Agency and the union agreed to expand the placement area to 450 miles.
Complainant applied for reassignment to a Letter Carrier position at the Ashlan Park Station in Fresno. According to the position description for this job, the "Functional Purpose" of a Letter Carrier is to "deliver and collect mail on foot or by vehicle under varying conditions in a prescribed area." Further, the "Duties and Responsibilities" include routing and casing mail; preparing and separating classes of mail; sorting mail; delivering mail along a prescribed route; and other duties. The position description does not speak to how much a carrier may need to lift or carry while preparing or delivering mail.
On September 5, 2008, Complainant reported for a medical assessment to clear his transfer from the clerk craft into the carrier craft. Complainant indicated on the assessment form that he had a medical condition for which he was being currently treated. Complainant did not specify his medical condition on the form. He disclosed that it could interfere with the full performance of the carrier duties.
During the course of the medical assessment, the examiner determined that the "work restrictions necessary to avoid exacerbation of [Complainant's] medical condition" were no lifting more than 50 pounds and no more than intermittent bending, lifting, or twisting at the waist. Further, the examiner noted that Complainant would "remain at increased risk of exacerbating his underlying medical condition within six months of initiating working in this position, as a result of more physically demanding activities."
Complainant did not pass the medical assessment and was deemed ineligible for reassignment into the carrier position. Complainant remained at the Selma REC until he was involuntarily reassigned to the Arnold Post Office, effective October 25, 2008. The Arnold Post Office was approximately 338 miles from the Selma REC. The reassignment resulted in Complainant being promoted to a Sales and Service Distribution Associate, Level 6; however, Complainant never reported to his new duty station because it was so far away. On February 20, 2009, Complainant was removed for failure to maintain satisfactory attendance.
On January 13, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race and national origin (Hispanic-American), sex (male), color (Brown), disability and in reprisal for prior protected EEO activity when his request for a voluntary reassignment to a Letter Carrier position was denied, and he was involuntarily reassigned outside of the local commuting area. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's motion and issued a decision without a hearing on July 30, 2010.1
In her decision, the AJ determined that Complainant had presented no evidence showing that he was subjected to discrimination based on race/national origin, color, or sex. Additionally, the AJ found that Complainant had presented no evidence that he participated in any prior protected EEO activity. As a result, the AJ found that Complainant had not been discriminated against on those bases and analyzed the remainder of the complaint on the basis of disability.
The AJ did not determine, one way or another, whether Complainant, was an individual with a disability. She concluded instead that he was not a qualified individual with a disability because the Agency's medical assessment found that Complainant could not lift in excess of 50 pounds and to be a Letter Carrier, one had to be able to lift up to 70 pounds. The AJ found that Complainant had presented no evidence that the Agency's reasons for any of its actions were a pretext for discrimination. The Agency subsequently issued a final order fully adopting the AJ's decision.
ANALYSIS AND FINDINGS
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 Agency disqualified Complainant from the Letter Carrier position because of his impairment. There is no evidence, medical or otherwise, in the record about this impairment, making it impossible to determine whether Complainant is an individual with a disability. It is also impossible to determine whether Complainant is a qualified individual with a disability because the only medical restrictions Complainant had were the ones the Agency created during the assessment for the purpose of "avoiding exacerbation." Further, we agree with the AJ's own observation, that to the extent the Agency was attempting to argue Complainant was at increased risk of exacerbating his impairment, the record is "woefully insufficient" to support a direct threat defense. This complaint record has not been adequately developed for adjudication.
In addition, the Commission finds that whether Complainant was qualified for the Letter Carrier position is a material fact in genuine dispute. The record reflects that the Agency conditionally reassigned Complainant to the position; therefore, there is no dispute that Complainant was qualified for the position in terms of his skills, knowledge, and other non-medical qualifications. In her decision, the AJ relied on the Agency's medical assessment in determining that Complainant was not "medically" qualified for the position. This assessment offered significant speculation that Complainant would exacerbate his impairment if he assumed a Letter Carrier position. Complainant honestly indicated during the reassignment process that his impairment "could" interfere with his ability to perform the duties of the position. This too was speculative. There is no evidence in the record as to what, if any, restrictions Complainant may have been under in his prior position. Finally, Complainant disputes the assessment's restrictions.
Given the lack of evidence in the record as to whether the ability to lift up to 70 pounds was in fact a requirement of the position and as to whether Complainant had any actual medical restrictions that would prevent him from performing the essential functions of the Letter Carrier position, the Commission finds that the record was inadequately developed to support the conclusion that the AJ reached. Proper development of the record could permit a reasonable fact finder to find in Complainant's favor. As such, summary judgment was inappropriate.
There are unresolved issues which require further development in discovery or at a hearing. Therefore, judgment as a matter of law for the Agency should not have been granted. After a careful review of the record, the Commission VACATES the Agency's final order and REMANDS the matter to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
The Agency shall submit to the Hearings Unit of the San Francisco District Office the request for a hearing and a copy of the complaint file within fifteen (15) 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 24, 2012
Date
1 The record reveals that five other Data Conversion Operators at the Selma REC filed similar EEO complaints; however, the AJ, without any further explanation, characterized the instant complaint as distinctive. Commission records reveal no appellate activity from the other Data Conversion Operators as of the date of this decision.
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0120103656
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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