0120071217
04-09-2009
Donna L. Hayes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donna L. Hayes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071217
Hearing No. 520-2006-00390X
Agency No. 4B018003706
DECISION
On December 27, 2006, complainant filed an appeal from the agency's
November 28, 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. The appeal is accepted 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 worked
as a Letter Carrier at the agency's Worcester, Massachusetts facility.
On April 3, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of disability (chronic
obstructive pulmonary disorder, or COPD) when, on December 30, 2005,
management advised her that she could not work and did not allow her to
return to duty until March 29, 2006.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted the agency's
motion for a decision without a hearing and issued a decision on November
14, 2006, finding no discrimination. The AJ found that, after viewing
the evidence in the light most favorable to complainant, a decision
without a hearing was appropriate as there were no genuine issues of
material fact in dispute.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged. Complainant raises no arguments on appeal.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a
decision without a hearing was appropriate, as no genuine dispute of
material fact exists. To prevail in a disparate treatment claim such
as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case
by demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima
facie inquiry may be dispensed with in this case, however, because the
agency has articulated legitimate and nondiscriminatory reasons for its
conduct. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, we concur with the AJ's finding that assuming, arguendo,
complainant established a prima facie case of disability discrimination,
the agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions. The record shows that complainant was diagnosed with
lung cancer in June 2003, and as a result of the radiation therapy
she underwent, she developed mild COPD. (Report of Investigation,
Affidavit A). Following her return to work, complainant submitted
a request for temporary light duty, dated June 27, 2003. (R.O.I.,
Affidavit B). The record shows that in September 2005, the agency
requested that complainant submit updated medical documentation to
support her continued light duty. By letter dated September 1, 2005,
the Postmaster (PM) of complainant's facility informed complainant that
she was required to provide updated medical information within 10 days.
(R.O.I., Affidavit A, 23). The record shows that complainant failed
to provide the requested documentation within the stated time frame,
and a second request was submitted to complainant on November 10, 2005,
to which she again did not respond. (R.O.I., Exhibit 3, 7).
On December 1, 2005, complainant submitted a work tolerance evaluation
form from her physician which outlined permanent physical restrictions.
(R.O.I., Exhibit 3, 11). The following day, complainant provided a
new work tolerance evaluation form, also dated December 1, which stated
that she could return to full duty. Because of the conflicting medical
documentation, the PM informed complainant that she could no longer
be granted temporary light duty and would have to request permanent
light duty. On January 5, 2006, complainant instead submitted a request
for a reasonable accommodation to the PM who then forwarded the request
to the District Reasonable Accommodation Committee (DRAC). The record
shows that while the DRAC was considering complainant's request, the
agency granted her temporary light duty, for which she failed to report.
(R.O.I., Affidavit A, 33; 36). The record further shows that complainant
again requested light duty, by letter dated February 23, 2006, and that
after providing the requested medical documentation and submitting to a
fitness-for-duty examination, complainant was cleared for full duty.1
(R.O.I., Exhibit 3, 28; 34-35) Complainant returned to duty on March
29, 2006. We concur with the AJ's finding that complainant failed to
proffer any evidence to show that the agency's articulated reasons for
its actions are a pretext for unlawful disability discrimination.
Further, to the extent that complainant is alleging that the agency
failed to provide her with a reasonable accommodation, we note that
under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. ��
1630.2(o), 1630.2(p). We also note that when an individual's disability
or need for reasonable accommodation is not obvious, and he or she
fails to provide reasonable documentation requested by the employer,
then the employer will not be held liable for failure to provide the
requested accommodation. EEOC's Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the American with Disabilities
Act, EEOC Notice No. 915.002 (October 17, 2002), Question 6. Here,
we find that complainant repeatedly failed to respond to the agency's
requests for updated medical documentation. As such, we concur with the
AJ's finding that the delay in complainant being returned to duty was the
result of complainant's failure to provide the requested documentation.
Accordingly, we concur with the AJ's finding that complainant failed to
show that agency violated the Rehabilitation Act.
We find that viewing the record evidence in the light most favorable to
complainant, there are no genuine issues of material fact. We further
find that the AJ appropriately issued a decision without a hearing
finding no discrimination. Therefore, we discern no basis to disturb
the AJ's decision, and the agency's final order isAFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
April 9, 2009
Date
1 We note that complainant has not alleged discrimination with respect
to the fitness for duty examination.
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0120071217
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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