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