0120064725
05-30-2008
George E. Carr, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
George E. Carr,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200647251
Hearing No. 100-2005-00593X
Agency No. 4K-210-0086-04
DECISION
On August 18, 2006, complainant filed an appeal from the agency's July
19, 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Rural Carrier at the Hanover Post Office in Elkridge, Maryland. In
August 2002, complainant suffered an on-the-job injury to his left hand.
As a result, he was placed into a limited duty assignment. While on
limited duty, complainant's assignments consisted of assisting customers
in the lobby, running express mail and express mail pick up. Complainant
performed the duties using only his right hand and the repetitive use
of his right hand resulted in complainant being diagnosed with Carpal
Tunnel Syndrome to his right hand on March 8, 2004. On March 23, 2004,
complainant was sent home because there were no available limited
duty assignments which complainant could perform within his medical
restrictions. On May 6, 2004, after management receipt of complainant's
medical documentation, which indicated that he was able to return to work,
complainant was placed back on his limited duty assignment.
On June 18, 2004, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (African-American) and
disability (Carpal Tunnel Syndrome) when:
1. on March 23, 2004, he was informed that his limited duty assignment
would be terminated and he was forced to use annual and sick leave from
March 23, 2004 through May 6, 2004; and
2. on an unspecified date, he submitted a leave slip requesting one sick
day and eight days of annual leave, but was paid for one day sick leave
and not for the eight days of annual leave.
At the conclusion of the 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. Over complainant's objections, the AJ assigned to
the case granted the agency's motion for a decision without a hearing.
On July 12, 2006, the AJ issued a decision without a hearing finding no
discrimination. The AJ found that, assuming complainant established
a prima facie on all bases, the agency articulated legitimate,
nondiscriminatory reasons for its action and complainant did not show
those reasons to be pretextual. The agency explained that complainant
was sent home on March 23, 2004, because there was no work available
within his medical restrictions. The record reveals that complainant
was limited in the use of his left hand due to an on-the-job injury
in August 2002; and since March 8, 2004, he was limited in the use of
his right hand and arm due to Carpal Tunnel Syndrome. Accordingly,
complainant was sent home because he could not perform any work as all
the work available required the use of both hands. The AJ noted that
after complainant provided medical documentation that he could return
to work he was immediately placed back on his limited duty assignment.
The AJ also concluded that the undisputed evidence shows that complainant
was not forced to use annual and sick leave from March 23, 2004 through
May 6, 2004. Specifically, the AJ found that on March 14, 2004,
complainant filed a Form CA-2, Notice of Occupational Disease and Claim
for Compensation for pain and numbness in his right hand, wrist and elbow.
It is a standard procedure for an employee to use leave while a CA-2
injury is being adjudicated.2 Management asserts that complainant chose
(was not forced) to take leave rather than being placed in leave without
pay status during the period his injury claim was being substantiated.
However, once the claim was accepted his leave was reinstated. The agency
also stated that according to complainant's time and attendance report,
complainant was granted and paid for 19 days of annual leave during the
period March 23, 2004 through May 6, 2004.
The AJ further found that complainant was paid for all leave he used
during the period in question. The undisputed evidence shows that on
April 7, 2004, complainant was issued an Emergency Salary Authorization
and receipt for $1,255.31 to cover the eight days of annual leave he
alleges he was not paid for. Moreover, the AJ observed that the Office
of Workers' Compensation Programs authorized compensation for wage
loss for the period April 3, 2004 through May 4, 2004. Accordingly,
the AJ concluded that with a combination of both payments, complainant
has been fully compensated. In addition, the AJ noted that the Workers'
Compensation Decision dated October 14, 2005, allowed complainant to buy
back any leave that he used after he was diagnosed with Carpal Tunnel
Syndrome to his right hand. The AJ concluded that complainant failed to
establish discrimination as alleged. The agency issued a final action,
implementing the AJ's decision.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VIA. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56. 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). The AJ may properly issue a decision
without 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. 0120024206 (July 11, 2003).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision. The AJ's issuance of
a decision without a hearing was appropriate because there are no genuine
issues of material fact in dispute, and the preponderance of the evidence
of record does not establish that discrimination occurred. It is noted
that the Commission does not address in this decision whether complainant
is a qualified individual with a disability.3 It is also noted that
complainant has not claimed that he was denied a reasonable accommodation
nor that he was required to work beyond his medical limitations.
Accordingly, the agency's order is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
May 30, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above referenced appeal number.
2 Employees are not retained in a pay status while CA-2 injury claim
is being substantiated. Employees can use their sick leave for a
continuation of their pay during the verification and acceptance period
of a CA-2 injury claim. Once the claim is accepted, the employee would
be allowed to file a CA7/CA20 and have his or her leave reinstated to
his leave balance.
3 We assume, without finding, for the purposes of analysis only, that
complainant is an individual with a disability as alleged.
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0120064725
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064725