0120073999
03-13-2008
James W. Manear, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James W. Manear,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073999
Agency No. 4G-752-0085-06
Hearing No. 450-2007-00187X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's August 21, 2007 final action concerning his 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.
During the period at issue, complainant was employed as a Custodian, PS-3, at the agency's Central Station in Irving, Texas.
On March 6, 2006, complainant filed the instant formal complaint. Therein, complainant claimed that he was the victim of unlawful employment discrimination on the basis of disability (injured back and knee) when:
on December 30, 2005, he became aware that another employee's days off were not changed.
The record reflects that complainant sustained a temporary back injury on the job which resulted in a lifting limitation of 25 pounds and limited standing, walking, kneeling, bending, twisting and pulling or pushing. The record further reflects that on October 23, 2005, complainant was accommodated for his injury and his days off were changed so that he was working on Saturday. On December 30, 2005, however, complainant learned that the off-days of another employee, (E1) were not changed. The record reflects that E1 had a permanent disability and had been in his limited duty position since July 1997. In April 2006, complainant's days off were changed back to his original schedule.
At the conclusion of the investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ). On August 14, 2007, the AJ issued a decision without a hearing, finding no discrimination. Therein, the AJ determined that complainant did not establish a prima facie case of disability discrimination. Specifically, the AJ indicated that complainant failed to show that he was a qualified individual with a disability. The AJ noted that complainant suffered an injury to his back which for a period of time limited his ability to lift, walk, push and pull which necessitated a temporary limited duty assignment. The AJ noted, however, that complainant recovered and returned to his normal duties within six months and suffers no lingering limitations. The AJ further noted that complainant is a veteran with a ten percent rating due to a knee injury and stated that he has problems "walking right" sometimes, however, he indicated no substantial limitation to his ability to walk, or his ability to work. The AJ also noted that complainant stated that his physician has not given him any limitations on his left knee and he does not require any accommodation.
The AJ further found that assuming complainant established a prima facie case, the agency articulated legitimate, nondiscriminatory reasons for its actions (providing complainant a limited duty assignment due to an injury) which complainant failed to show were a pretext for discrimination.
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, 322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of a 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.
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 discrimination occurred.
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
March 13, 2008
__________________
Date
2
0120073999
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120073999