Eric L. Bursh, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionOct 12, 2010
0120102108 (E.E.O.C. Oct. 12, 2010)

0120102108

10-12-2010

Eric L. Bursh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Eric L. Bursh,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 0120102108

Hearing No. 540-2009-00058X

Agency No. 1E-853-0033-08

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 19, 2010 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

BACKGROUND

During the period at issue, Complainant was employed as a Mail Processing Clerk at the Agency's Phoenix, Arizona Processing and Distribution Center.

The record reflects that Complainant has an asthmatic condition that limits the amount of exercise he can do, including the ability to walk long distance. The record further reflects that in 2003, Complainant suffered an on-the-job injury to his shoulder and back, and psychological trauma when he was assaulted while driving a postal vehicle. As a result of this incident, Complainant filed a claim of an on-the-job injury that was accepted by Department of Labor's Office of Workers' Compensation Program. Following the on-the-job injury, Complainant received a medical restriction that precludes him from driving tractor trailers.

On April 11, 2008, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.

On July 23, 2008, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the basis of disability (asthma) when:

1. on January 16, 2008, he was issued a Letter of Warning;

2. on April 19, 2008, he was threatened with discipline;

3. on May 13, 2008, he was issued a Notice of Suspension for Seven Days; and

4. in August 2008, he was involuntary removed from the Motor Vehicle Craft to the Clerk Craft.1

On August 11, 2008, the Agency issued a partial dismissal. Therein, the Agency accepted for investigation claims 3 and 4. However, the Agency dismissed claim 1 on the grounds of untimely EEO Counselor pursuant to 29 C.F.R. � 1614.107(a)(2) and it dismissed claim 2 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).

Following the investigation concerning claims 3 and 4, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 4, 2010, the AJ issued a decision by summary judgment in favor of the Agency regarding claims 3 and 4. In its March 19, 2010 final action, the Agency implemented the AJ's decision.

In her decision, the AJ found that assuming, for the purpose of the summary judgment, Complainant established a prima facie case of disability discrimination, the Agency had nonetheless articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.2

Regarding claim 3, the record reflects that in 2003, Complainant had requested Family Medical Leave (FMLA) approved leave for up to three days per month, as a result of asthma. The Agency approved leave usage under FMLA, at that time. The record further reflects that Complainant again requested FMLA approval for leave in 2007. Complainant was approved for leave from August 20, 2007 through September 23, 2007 and up to six days per month thereafter. The record reflects that Complainant's specific leave for the Fall of 2007 was approved pending medical documentation. In January 2008, Complainant requested FMLA approval and provided documentation indicating that he was incapacitated approximately eighteen days, between December 7, 2007 and January 12, 2009. The record reflects that the documentation indicated such incapacitation would likely occur four to six times per year and could "delay arrival at work."

On January 16, 2008, Complainant was issued a letter of warning (the subject of claim 1) for failure to maintain regular attendance. Specifically, the letter of warning cited twelve unscheduled absences since September 2007. On February 8, 2008, Complainant requested FMLA approval for leave beginning on February 20, 2008, this time for a muscular skeletal disorder. The record reflects that the dates of incapacitation for that condition were identified as February 20 and 22, 2008, with a note that Complainant could be incapacitated one to three times per month for up to three days per occurrence. On March 21, 2008, Complainant again requested FMLA approval for leave beginning on March 20, 2008. On April 10, 2008, Complainant was notified that his request was pending documentation. On May 13, 2008, Complainant was issued a Notice of Suspension of Seven Days for failure to maintain attendance (the subject of claim 3).

Complainant's supervisor (S1) was the deciding official to issue Complainant a Notice of Suspension of Seven Days in May 2008, for "failure to maintain regular attendance already ,and this was progressive discipline." The record reflects that in the Notice of Suspension of Seven Days dated May 13, 2008, Complainant incurred the following instances of unscheduled absences on the following days: 1.61 hours of annual leave on March 26, 2008; 0.28 hours of Leave Without Pay on March 27, 2008; 1.0 hour of sick leave on April 4, 2008; 0.71 hours of sick leave on April 9, 2008; and 16.0 hours of annual leave (in conjunction with SDO or scheduled leave) on April 11, 2008. The record reflects that Complainant completed leave request for the above mentioned dates. However, Complainant did not indicate that any of the absences were related to an FMLA-approved absence.

Prior to the issuance of the May 13, 2008 suspension, on May 9, 2008, S1 conducted a meeting with Complainant and his representative in which Complainant was given an opportunity to explain his unscheduled absences. S1 stated that Complainant explained that his absences were due to asthma and shoulder injury. However, S1 felt that Complainant's explanation did not relieve him of his responsibility to be regular in attendance. S1 stated that he relied on Sections 511.4 "Unscheduled Absences," 511.43 "Employee Responsibility," 665.41 "Requirement for Attendance," and 665.43 "Tardiness" of the Employee and Labor Relations Manual. In addition, S1 stated that he took into consideration Complainant's Letter of Warning dated January 25, 2008 for failure to maintain regular attendance in consideration.

Regarding claim 4, the record reflects that on March 12, 2008, Complainant was offered a modified job offer as a Mail Processing Clerk because he could no longer operate tractor trailers. Complainant declined the job offer and the job was referred to the Department of Labor for a suitability determination as is required when job offers are associated with on-the-job injuries are declined by employees. The record further reflects that the Department of Labor ruled the job offer was suitable and thereafter Complainant accepted the offer on June 30, 2008.

The Health and Resource Specialist (HRS) stated that Complainant accepted a job offer "which was suitable by the US Department of Labor. He could not drive. At first he declined the job offer on March 27, 2008 but once it was ruled suitable by the US Department of Labor, he accepted it on June 30, 2008."

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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.

We note that Complainant, on appeal, argues that argues the AJ erred in issuing a decision without a hearing because there are genuine issues of material fact. For instance, Complainant states that in her decision, the AJ "noted that Complainant's Response to the Agency's Motion for Summary Judgment consisted largely of speculation and claims of harassment which the Judge deemed not part of the Complaint. We disagree and argue that the Judge erred when she deemed Complainant's claims of harassment, failure to provide reasonable accommodations, disparate treatment, and unlawful retaliation by [Transportation Manager (TM)] and management not part and parcel to his claim of disability discrimination."

Further, Complainant argues that management "have systematically harassed [Complainant] without plausible explanation. It started in January 2008 with the agency's issuance of the letter of warning regarding excessive absences that the Agency knew or should have known were approved for FMLA." Complainant argues that TM threatened with him with discipline. Specifically, Complainant argues that TM did 'not care' about [Complainant's] disability or his request for FMLA. [TM] accused him of being disingenuous and 'playing the system.'" However, despite the above referenced arguments, the Commission determines that the AJ properly concluded that Complainant was not discriminated against. We note, for example, that in her decision, the AJ noted although Complainant filed a lengthy response to the Agency's summary judgment motion, it consisted largely of speculation and harassment claims that were not part of the instant complaint.

Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.

Claims 1 and 2

In its August 11, 2008 partial dismissal, the Agency dismissed claim 1 for untimely EEO Counselor contact and claim 2 for failure to state a claim. With respect to claim 1, The Commission determines that the Agency properly dismissed it for untimely EEO Counselor contact. 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The record in this case establishes that Complainant first contacted an EEO Counselor regarding claim 1 on April 11, 2008, despite conceding that he had been aware, since at least on January 16, 2008, when he was issued a Letter of Warning. As this was well beyond the required 45-day time limitation, and we find no other justification for extending that period, we affirm the Agency's partial dismissal of claim 1.

With respect to claim 2, we find that the Agency properly dismissed it for failure to state a claim because Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of his employment. We further found that the matters were isolated incidents that were insufficiently severe or pervasive to rise to the level of harassment.

Accordingly, the Agency's partial dismissal of claims 1 and 2 was proper and is AFFIRMED.

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

October 12, 2010

__________________

Date

1 The record reflects that claim 4 was later amended to the instant formal complaint.

2 For purposes of analysis only, and without so finding, the Commission presumes that complainant is an individual with a disability within the meaning of the Rehabilitation Act.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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