David A. Johnson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 25, 2007
0120063649 (E.E.O.C. May. 25, 2007)

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