0120092558
02-26-2013
Floyd E. Stonum, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Floyd E. Stonum,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120092558
Hearing No. 532-2008-00072X
Agency No. 1C-441-0072-07
DECISION
Complainant filed an appeal from the Agency's May 15, 2009, 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUES PRESENTED
The issues presented are: 1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; 2) whether the AJ properly found that Complainant failed to prove that he was subjected to sex discrimination; and 3) whether the AJ properly found that Complainant failed to prove that the Agency denied him a reasonable accommodation for his disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency's Orange Avenue facility in Cleveland, Ohio. Complainant has suffered from back problems and had back surgery in 2000. On May 21, 2002, Complainant injured his left foot when a case gate fell on that foot. Consequently, Complainant sometimes uses a cane to walk. On January 4, 2006, Complainant accepted a modified assignment as a Modified Flat Clerk with the duties of casing flat mail with a flat case, which can be done sitting in a chair and requires use of both hands.
In a Duty Status Report dated July 16, 2007, Complainant's physician indicated that Complainant could only lift up to five pounds intermittently or continuously for one hour per day. Report of Investigation (ROI), Exhibit 3, p. 1. The physician further indicated that Complainant could sit and engage in fine manipulation for eight hours per day. Additionally, the physician stated that Complainant could not stand, climb, kneel, or twist. The physician stated that Complainant could not walk continuously but could walk intermittently for up to two hours per day. Additionally, the physician stated Complainant could reach above his shoulders and drive a vehicle for up to two hours per day. The physician also stated that Complainant could not bend/stoop continuously, but could bend intermittently from zero to one hour per day.1
On September 20 2007, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of sex (male), race (African American),2 and disability (foot injury and back problem) when, on July 19, 2007, his supervisor (S1) changed his work station.
In an investigative affidavit statement, Complainant stated that, prior to July 19, 2007, the Plant Manager arranged for him to work with a particular case.3 Affidavit A. Complainant stated that, on July 19, 2007, S1 had this case removed and put in a new case for Complainant to use. S1 stated that he showed S1 a copy of his restrictions, and told her that the new case would have required him to stand, reach above his shoulders, and bend and stoop, but S1 said that she could not read his doctor's writing and gave him a direct order to demonstrate to her that he could not work the new case. Complainant stated that he tried to work the new case for about a half-minute, and when he reached above his shoulder to case a letter, he felt a pain in his back and immediately stopped.
Complainant further stated that he asked the Manager of Distribution Operations (MDO) if he could have his old case back, and the MDO told S1 to bring Complainant's modified case back. Complainant stated that his physician examined him and told him that what S1 had ordered him to do aggravated his lumbar disc problems and referred Complainant to a spine center. Complainant also stated that the pain in his back has gotten worse. Complainant stated that he believed that this was sex discrimination because a female employee (C1) who has restrictions was not required to demonstrate to S1 that she could not do ordered work.
S1 stated that she ordered Complainant to work the new case in order to expedite mail or because of productivity. Affidavit B. S1 stated that Complainant did not request that his case be changed back when he was told to work on the new case, but she had him demonstrate his ability to use the case so that she could see what kind of problems Complainant would encounter that would prevent him from working the new case. S1 stated that Complainant did not complain of injury, go home, take leave, or provide medical documentation showing that he injured his back and his medical documentation did not indicate that Complainant used a modified case.
A clerk (C2) stated that she was the Acting Supervisor in July 2007. Affidavit C. C2 stated that S1 instructed her to change Complainant's case during the relevant time period. C2 stated that on July 19, 2007, Complainant asked her to put his old case back in place because the new one was outside his restrictions. C2 stated that Complainant's request was denied until the MDO came out of a meeting at 4:00 p.m.
The MDO stated that Complainant asked to have his case changed back to the way it was before, and the MDO told S1 to let Complainant keep his case the way it was because of his medical condition. The MDO stated that she did not make Complainant demonstrate anything, but Complainant wanted to demonstrate to her that he could not work the case that S1 wanted him to work.
The record contains an employee narrative from Complainant dated October 30, 2007. In that narrative, Complainant stated that, on July 19, 2007, C2 informed him that S1 had moved the "handicap case" that the Plant Manager had given him to work on because of Complainant's restrictions. Complainant further stated that he asked for a union steward, but the MDO and S1 told him to return to his unit to work. Complainant stated that he returned to work in his unit but informed management that he could not work on the new case because it was outside his restrictions. Complainant also stated that he showed management his restrictions, but S1 told him that she could not read the restrictions. Complainant stated that S1 then gave him a direct order to work the new case. Complainant stated that he tried to work on the new case, but he felt some pain his back, and he stopped working. Complainant stated that MDO returned his modified case after he stated that he could not work the new case. Complainant stated that he aggravated his lumbar disc injury on the new case, which caused him to experience an increase in pain.
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 requested a hearing.
AJ's Decision
On April 11, 2008, the Agency moved for a decision without a hearing, to which Complainant responded in opposition on April 29, 2008. On May 5 2009, the AJ granted the Agency's motion for a decision without a hearing. In his decision, the AJ found that Complainant failed to prove that he was subjected to unlawful sex or disability discrimination. Specifically, the AJ found that Complainant failed to establish a prima facie case of discrimination based on sex because he did not identify any similarly-situated female coworker who was treated more favorable than he was treated under similar circumstances.
The AJ further found that Complainant failed to establish a prima facie case of disability discrimination based on the Agency's failure to reasonably accommodate him because Complainant failed to establish that his modified case was medically warranted at the time he requested continued use of his modified case. The AJ noted that Complainant's most recent Duty Status Report did not require the use of a special case and reflected that he could reach above his shoulders for two hours per day. Viewing "Complainant's request for the continued use of his special case as a new request for an additional accommodation," the AJ found that the Agency's restoration of Complainant's modified case on the same day of his request was "an Agency response sufficiently quick as to not result in a violation of the Rehabilitation Act." On May 15, 2009, the Agency issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he was treated differently than three limited-duty or light-duty female co-workers (C1, C2, C3) because they were not instructed to demonstrate that using work equipment was outside their restrictions. Complainant also maintains that he did not request medical attention on July 19, 2007, because it did not seem that he had suffered a "major injury" on that day, but the pain he experienced became worse each day afterward. Complainant maintains that he informed the MDO and S1 of his re-injury when he felt pain. Complainant also maintains that the Agency's assertion that he worked four hours of overtime on July 19, 2007, is untrue. Complainant maintains that he only worked eight hours on July 19 2007, including four hours of night-differential because he worked after 6:00 p.m. The Agency does not raise any argument on appeal.
ANALYSIS AND FINDINGS
Decision without a Hearing
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. Dep't of Defense, 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).
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. As a threshold matter in a case of disability discrimination under a failure to accommodate theory, the complainant must demonstrate that he is an "individual with a disability."
As an initial matter, we note that this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2007, the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008 must be used to determine whether Complainant is an individual with a disability. However, for purposes of analysis, and without so finding, we assume arguendo that Complainant is an individual with a disability.
In this case, Complainant alleges that he was denied a reasonable accommodation when, on July 19, 2007, management removed his modified work case and replaced it with a regular case, which resulted in him re-injuring his back. The only medical restrictions in the record from the relevant time period indicate, in pertinent part, that Complainant could not lift more than five pounds, reach above his shoulder for more than two hours per day, sit more than eight hours per day, walk more than two hours per day, or operate machinery intermittently more than two hours per day.
However, there is no medical documentation in the record that reflects that Complainant needed a modified case or any other type of equipment because of his medical condition. Further, the record does not reveal basic questions pertinent to deciding whether Complainant was denied a reasonable accommodation, such as what is a modified case; how does a modified case differ from a regular case; and did Complainant have any restrictions that would impact his ability to use a regular case. While it is clear that at least MDO agreed with Complainant's assertion that he needed to use a modified case because of his restrictions, the record simply does not link his medical condition to his use of a modified case. Further, although Complainant implies that working on the regular case violated his medical restrictions because it involved reaching above his shoulders, standing, bending and stooping, we note that his medical restrictions allowed him to reach above his shoulders for up to two hours per day. Also, Complainant's restrictions allowed him to bend/stoop intermittently from zero to one hour per day. Nevertheless, we cannot reach any conclusions about whether the Agency violated Complainant's medical restrictions because the record does not specify how working on the regular case related to his restrictions.
Additionally, there are genuine issues of material fact in this case. Specifically, Complainant maintained that he showed S1 a copy of his restrictions and told her that the new case would have required him to stand, reach above his shoulders, and bend and stoop, but S1 nevertheless gave him a direct order to demonstrate to her that he could not work the new case. S1 stated that Complainant did not dispute her order to work on the new case and did not request that his case be changed back when he was told to work on the new case. C2 stated that on July 19, 2007, Complainant asked her to put his old case back in place because the new one was outside his restrictions, but it is unclear whether Complainant made this request before he was forced to work on the new case or after he was forced to do so. As such, there is genuine issue of fact about whether the Agency was aware that working the new case violated Complainant's restrictions. Therefore, there is a need for a hearing to assess the credibility of management officials as well as the credibility of Complainant.
This deficiency of the record and the existence of a genuine issue of matter fact preclude us from determining whether Complainant was denied a reasonable accommodation. We note that an "appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred." EEO MD-110, at 6-1. Further, because Complainant's disparate treatment claim involves core facts that are interrelated with his reasonable accommodation claim, we find that Complainant's entire complaint should be considered at the hearing. Therefore, the Commission concludes that genuine issues of material fact exist, and the AJ failed to ensure that the record was sufficiently developed before granting the Agency's motion for a decision without a hearing. Judgment as a matter of law for the Agency should not have been granted. See Adams v. Dep't of Homeland Sec., EEOC Appeal No. 0120054463 (Aug. 31. 2007).
CONCLUSION
Based on a thorough review of the record, the Commission VACATES the final order and REMANDS this matter to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Cleveland Field Office a request for a hearing, before different AJ than was originally assigned to the case, within 15 calendar days of the date this decision becomes final. The agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 15 calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on Complainant's reasonable accommodation claim in accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
February 26, 2013
Date
1 These restrictions were essentially identical to restrictions indicated on Complainant's previous Duty Status Report dated July 23, 2006.
2 We note that that the AJ did not acknowledge nor analyze Complainant's race discrimination claim. However, in a supplemental investigatory affidavit, Complainant stated that he was not alleging discrimination on the basis of race or color. Affidavit A, p. 8. As such, we do not address race discrimination herein.
3 We note that Complainant, other witnesses, the AJ, and the investigator inexplicably use the two terms, "case" and "cage," to refer to the work station equipment at issue in this matter. A case is a piece of equipment containing separations into which letters, flats, or irregular parcels are sorted. United States Postal Service, Glossary of Postal Terms, p. 34 (Jan. 2013), available online at http://about.usps.com/publications/pub32.pdf. A cage is a secure area in a post office where registered mail and other accountable items are kept. Id., at p. 31. Based on the context discussed in the record, we have determined that it is most likely that a "case" is the proper term at issue here. Consequently, herein we refer to the pertinent work station equipment as a "case."
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0120092558
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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