0120063649
05-25-2007
David A. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David A. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120063649
Agency No. 1E-554-0046-03
Hearing No. 260-2005-0026X
DECISION1
On May 26, 2006, complainant filed an appeal from the agency's April
25, 2006, 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. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission affirms the agency's final order.
Complainant alleged that the agency discriminated against him on the
bases of race (African-American), sex (male), and disability (back and
hip impairment) when:
1. on July 28, 2003, he was told he could not work in Units 060 and 070;
2. on August 15, 2003, he was sent home because he was using crutches;
and
3. on September 19, 2003, he received a Notice of 5 Day Suspension for
unacceptable conduct/disrespect to a fellow employee.
During the relevant time, complainant worked as a Flat Sorter Clerk
at the Minneapolis Processing and Distribution Center in Minneapolis,
Minnesota. On October 10, 2003, complainant filed a formal complaint on
the claims stated above. At the conclusion of the agency's investigation,
complainant was provided 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, and on March 24,
2006, the agency filed a motion for a decision without a hearing.
On April 10, 2006, complainant filed a response in opposition to the
agency's motion. The AJ granted the agency's motion and issued a decision
without a hearing on April 12, 2006.
The AJ identified the material facts as follows: Complainant has
impairments to his back and right hip, and from approximately August
11, 2003 through September 5, 2003, he was limited in driving, walking,
and shopping. On July 28, 2003, an acting supervisor (African-American),
Distribution Operations, would not allow complainant to work in Units
060 and 070 because these Units are for employees on light or limited
duty supported by medical restrictions. The agency staffs the Units
by rotation, assigns employees on a monthly basis, and assigns extras
to the Units by seniority or rotation. Complainant did not have the
required medical documentation to be assigned to the Units.
On August 12, 2003, complainant went to work using his crutches due to a
flare-up of his hip impairment. Complainant's supervisor (Hispanic)(the
Supervisor) requested that complainant describe his injury, and informed
him that he would need to provide medical documentation to return to work
the following day. Complainant provided a doctor's note on August 14,
2003, which stated that complainant would require the use of crutches
until September 4, 2003. The Supervisor determined that complainant's
medical documentation was insufficient because it did not meet the
criteria in the Postal regulations, and he was unable to determine the
extent of complainant's limitations. On August 15, 2003, the Supervisor
sent complainant home at 5:30 a.m. On August 21, 2003, complainant
returned to work with medical clearance and duty restrictions.2
On September 19, 2003, the agency gave complainant a Notice of Five Day
Suspension, effective October 5, 2003, for unacceptable conduct/disrespect
to a fellow employee. The Notice stated that complainant made a
threatening remark to a coworker. The suspension was later reduced to
an Official Job Discussion.
Based upon the aforesaid facts, the AJ issued a decision finding no
discrimination. She found that complainant's impairments only made
him substantially limited in major life activities for a temporary
period of time. The AJ further determined that complainant failed to
establish a prima facie case of race or sex discrimination with respect
to claims (1) and (2). Moreover, she found that, even assuming argunedo
that complainant established a prima facie case of discrimination, the
agency articulated legitimate nondiscriminatory reasons for its actions,
which complainant failed to show were pretextual. With respect to claim
(3), the AJ dismissed the claim because the suspension was later reduced
to an Official Job Discussion, and she reasoned that complainant was no
longer subjected to an adverse action. The agency subsequently issued
a final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged.
On appeal, complainant contends, among other things, that other employees
were allowed to work in Units 060 and 070, but he was not allowed to work
in those Units because of his protected bases. He further asserts that
other employees with impairments that were similar to his were allowed
to perform their jobs, but he was sent home. Finally, complainant
maintains that the agency consciously separates African-American men
from one another.
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 EEOC Management Directive 110, 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").
We must first 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the AJ's
decision referenced the appropriate regulations, policies, and laws.
Moreover, we find that the AJ properly issued a decision without a hearing
because complainant has failed to show that a genuine issue of material
fact exists. We find that, even assuming arguendo that complainant has
established that he is an individual with a disability,3 and a prima
facie case of race or sex discrimination, the agency has articulated
legitimate nondiscriminatory reasons for its actions. Specifically,
with respect to claim (1), Units 060 and 070 are for employees on light
or limited duty supported by medical restrictions, and complainant did
not have the required medical documentation to be assigned to the unit;
and with respect to claim (2), complainant was on crutches, and failed to
provide medical documentation that adequately supported any restrictions.
Although complainant alleges that other employees were treated differently
than he was by management, he has failed to show that the other employees
were similarly situated to him. Furthermore, while he maintains that
the agency consciously separates African-American men from one another,
he provides nothing more than his bare assertions to support his claim.
Accordingly, we find that he has failed to show that the agency's reasons
are pretext for discrimination.
As to claim (3), we find that the AJ properly found that complainant's
claim was rendered moot when the Notice of Five Day Suspension was reduced
to an Official Job Discussion through the grievance process. 29 C.F.R. �
1614.107(a)(5) provides that the agency shall dismiss a complaint that
is moot. To determine whether the issue raised in the instant complaint
is moot, it must be ascertained whether: (1) it can be said with assurance
that there is no reasonable expectation that the alleged violation will
recur, and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation. See County of Los Angeles
v. Davis, 440 U.S. 625(1979). When such circumstances exist, no relief is
available and no need for a determination of the rights of the parties is
presented. Watson v. Department of the Navy, EEOC Request No. 05970452
(January 8, 1999)(The Commission has further held that the potential
for compensatory damages means that an allegation cannot be dismissed as
being moot without a determination being made as to whether complainant is
entitled to compensatory damages.). In the present case, it can be said
that interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation. Furthermore, complainant did not
request compensatory damages; therefore, no further relief is available.
For the foregoing reason, we concur with the AJ's determination and find
that a decision without a hearing was appropriately issued in this case.
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 order.
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 (S0900)
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 (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
___5/25/07_______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Through the grievance procedure, the agency paid complainant sick
leave for the time period from August 15 through August 22, 2003.
3We assume without finding, for the purposes of analysis only, that
complainant is an individual with a disability as alleged.
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0120063649
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063649