Jacqueline A. Nelson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 10, 2007
0120070825 (E.E.O.C. May. 10, 2007)

0120070825

05-10-2007

Jacqueline A. Nelson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jacqueline A. Nelson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070825

Hearing No. 550-2006-00107X

Agency No. 4F-945-0230-05

DECISION

On November 27, 2006, complainant filed an appeal from the agency's

October 23, 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 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.

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

complainant on the basis of disability (regarded as) when, on August

2, 2005, she was informed that she was not to return to work at the

agency.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a full-time city carrier at the Springtowns Stations in Vallejo,

California. She had worked with the agency since September 1990.

On March 12, 2005, complainant completed a CA-1 form for an on-the-job

injury. She reported that she had a right shoulder strain and impingement

which limited her in performing activities requiring repetitive or

throwing motions. From March 15 through 25, 2005, a Kaiser Permanente

physician placed her on total disability. According to complainant,

said physician told her not to reach, move, lift, or pull/push, and to

apply ice to her right shoulder.

On March 16, 2005, the agency referred complainant to the Postal

Inspection Service. Thereafter, the Postal Inspection Service placed

her under surveillance and videotaped her performing activities

that conflicted with her total disability status and her physician's

instructions. Moreover, on March 28, 2005, when she returned to work

on modified duty, the agency physician provided her with the following

restrictions: (A.) Reach above right shoulder: Not at all; (B.) Avoid

reaching with right arm; (C.) No push with right arm (including sliding

doors); and (D.) No satchel right shoulder. The agency observed her

performing activities contrary to her medical restrictions on that day.

On March 20, 2005, the agency physician added the restriction of

no driving. Agency officials observed complainant driving her car

thereafter, and on April 5, 2005, she engaged in other activities that

did not comport with her restrictions.

The record reveals that, on May 16, 2005, the Supervisor, Customer

Services, issued complainant a Notice of Removal for Violation of

Medical Restrictions/Failure to Follow Instructions (the Notice).1

In the Notice, the agency asserted that on March 17 and 22, 2005,

complainant was observed performing activities such as driving, bending

in the back seat of her car, using both hands to secure a child in a

car seat, carrying plastic shopping bags, and opening and closing the

trunk of a car. It further stated that complainant engaged in similar

activities on April 5, 2005.

On November 29, 2005, complainant filed an EEO complaint on her removal.

At the conclusion of the agency's 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

determined sua sponte that the complaint did not warrant a hearing, and

over the complainant's objections, issued a decision without a hearing

on October 3, 2006.

In her decision, the AJ found that complainant failed to establish

that she is an individual with disability, or that the agency regarded

her as such. She then assumed arguendo that the agency regarded

complainant as disabled, but found that the agency provided a legitimate

nondiscriminatory reason for removing her. Although complainant argued

that the AJ should not take into account any evidence presented during

arbitration, and that she was not aware of the restrictions imposed on

her, the AJ determined, among other things, that complainant was not

truthful with the agency and she was video-taped performing actions

outside of her limitations. The AJ concluded that the agency had a

reasonable basis for believing that complainant violated her medical

restrictions in relation to her claim for workers' compensation.

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.

On appeal, complainant contends that she has established that agency

regarded her as disabled. She further asserts that the agency's attitude

towards her worsened after she injured herself in March 2005, and that

the agency's contact of the Postal Inspection Service on March 16, 2005

revealed their concerns, attitude, and perceptions of complainant's

impairment. Complainant also argues that the standard utilized during

arbitration does not apply under the Rehabilitation Act. Finally, she

maintains that she was unaware of certain restrictions that the agency

found her to have violated with regard to lifting because she did not

receive the agency physician's work slip during this period, and that

she never intended to lie to the Postal Inspection Service regarding

her driving of a private vehicle.

ANALYSIS AND FINDINGS

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 the agency regarded her as disabled,2

the agency has provided legitimate nondiscriminatory reasons for its

actions that complainant has failed to show are pretextual. On appeal,

complainant argues that the standard utilized during arbitration does

not apply under the Rehabilitation Act. While we agree with this

contention, the fact remains that complainant engaged in activities

that were inconsistent with the restrictions placed upon her by her own

physician, namely reaching, moving, lifting, or pulling/pushing with

her right arm. Complainant further maintains that she was unaware of

certain restrictions that the agency found her to have violated. We find,

however, that, even assuming that she was unaware of said restrictions,

the activities the agency videotaped her performing were in conflict

with her total disability status and her impairment. 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.

CONCLUSION

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

____5/10/07_______________

Date

1 On May 5, 2005, complainant was provided with a just cause interview

and she grieved the removal. The Arbitrator denied the grievance,

finding that the agency had just cause for the removal.

2 We assume without finding, for the purposes of analysis only, that

complainant is an individual with a disability as alleged.

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0120070825

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120070825