0120081971
08-18-2011
Dave Hunter, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Dave Hunter, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120081971
Hearing No. 461-2006-00072X
Agency No. 4G-700-0080-06
DECISION
On March 18, 2008, Complainant filed an appeal from the Agency’s March
11, 2008, final order concerning his 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 Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following
reasons, the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
bidder as a T-6 Letter Carrier at the Agency’s Post Office facility
in Gretna, Louisiana. The record indicated that Complainant had been
employed with the Agency. On April 2, 2004, Complainant stopped working
for medical reasons. In November 2004, Complainant was diagnosed with
hypertensive vascular disease and applied for disability retirement with
the Office of Personnel Management. However, it was denied. On March
9, 2006, Complainant bid on the T-6 Letter Carrier position which was
awarded to him on March 13, 2006. The record showed that the position
entailed casing and delivering mail on five different routes when a
regular carrier was not working.
On March 17, 2006, Complainant underwent heart surgery. The Agency
asked Complainant on April 19, 2006, for medical certification that
he could perform the essential functions of the position. The record
indicated that Complainant failed to respond to the Agency’s request.
On April 24, 2006, the Agency disallowed the bid. The matter was raised
in a grievance. As a result, the Agency cancelled the bid rescission
to allow Complainant an opportunity to provide medical certification
that he could perform the duties of his bid position. Complainant again
failed to provide the information to the Agency. As a result, the Agency
disallowed his bid again.
On June 1, 2006, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of disability
(hypertensive vascular disease) when, in April 2006; the Agency disallowed
Complainant’s bid to the T-6 Letter Carrier position.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right
to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. The Agency filed a motion
for summary judgment. The AJ assigned to the case determined that the
complaint did not warrant a hearing and over Complainant's objections,
issued a decision without a hearing on March 6, 2008.
The AJ determined that Complainant failed to establish that he was
subjected to discrimination in violation of the Rehabilitation Act.
The AJ noted that Complainant failed to establish coverage under the
Rehabilitation Act as a “qualified” individual with a disability,
noting that Complainant acknowledged that, based on the duties of the
bid position, he was not able to do the essential functions of the bid
position due to his medical condition. The Agency subsequently issued
a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.
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 Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at 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”). This essentially means that we should look at
this case with fresh eyes. In other words, we are free to accept (if
accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of
whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, § VI.A. (explaining that the de novo standard
of review “requires that the Commission examine the record without
regard to the factual and legal determinations of the previous decision
maker,” and that EEOC “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”).
We must 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. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to a
motion for a decision without a hearing). Upon review of the record,
we find that the AJ properly determined that there were no material
facts in dispute.
To bring a claim of disability discrimination, Complainant must first
establish that he is disabled within the meaning of the Rehabilitation
Act. For the purposes of analysis, we assume Complainant is an individual
with a disability. 29 C.F.R. § 1630.2(g)(1).
However, upon review of this matter, the Commission concludes that
Complainant has failed to prove that the Agency was in violation of the
Rehabilitation Act. The Agency's requests for medical documentation to
ensure that Complainant was qualified for the position were appropriate
under the Rehabilitation Act. The record indicates that Complainant
had not been in working status with the Agency since 2004, due to his
medical condition. Further, Complainant had applied for a disability
retirement from the Agency. Therefore, when he won the T-6 bid position,
the Agency requested that Complainant provide medical documentation
showing that he was able to perform the essential functions of the bid
position. Complainant refused to provide updated medical documentation
and consequently, the Agency withdrew the bid. The Agency was unable
to determine if Complainant could perform the duties of the bid
position without the medical documentation. It should also be noted
that Complainant averred that he could not perform the duties of his
bid position. The Agency noted that it needed the requested medical
documentation to evaluate Complainant's possible need for a reasonable
accommodation that could have allowed him to perform the duties of his
bid position. It is clear that the Agency sought to engage Complainant in
the interactive process, but Complainant failed to participate. Therefore,
the Commission finds that Complainant has not demonstrated that the
Agency violated the Rehabilitation Act. EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, EEOC No. 915.002, Question 6 (as revised Oct. 17, 2002).
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 action implementing the AJ’s finding of no
discrimination.
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 (November 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 (S0610)
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 (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 18, 2011
__________________
Date
2
0120081971
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120081971