0120064415
12-08-2008
Janis Jinks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Janis Jinks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200644151
Hearing No. 150-2006-00028x
Agency No. 4H-327-0116-05
DECISION
On July 26, 2006, complainant filed an appeal from the agency's June 22,
2006 notice of final action 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Markup Clerk at the agency's Brannon Street Station Post Office in
San Francisco, California. Since June 28, 2004, complainant had been
working in a temporary limited duty position as a lobby director for
the agency in San Francisco for four hours per day. Complainant filed a
request for reassignment to the agency's Central Florida District which
was received by the agency on August 20, 2004. On February 25, 2005, the
agency tentatively selected complainant for reassignment to a Part-Time
Flexible (PTF) Mail Processing Clerk position within the Orlando L&DC.
In a letter notifying complainant of her tentative selection, the agency
informed complainant that in order for it to continue processing her
reassignment request she "must understand that this position WILL require
Scheme Qualification and/or Dexterity." Complainant signed the documents
acknowledging that she understood this requirement.
In a March 23, 2005 letter, the agency sent complainant a letter
approving her reassignment to the Orlando L&DC as a Mail Processing
Clerk and giving her an effective date of June 25, 2005. Thereafter,
on May 26, 2005, complainant was sent a letter from Person A, Manager of
Human Resources, rescinding the reassignment. The letter stated that
"[p]reviously undisclosed information was received on May 20, 2005,
advising that [complainant's] medical limitations render [her] unable
to meet the essential functions of a Mail Processing Clerk."
Complainant filed an EEO complaint dated July 12, 2005, alleging that
she was discriminated against on the basis of disability (carpal tunnel
syndrome, lymphoma, and anxiety disorder) when:
On May 28, 2005, complainant was notified that her previously
approved reassignment to
the Central Florida District had been rescinded due to her
medical limitations.
At the conclusion of the 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. On February 6, 2006, the agency filed a motion
for a decision without a hearing. Complainant filed her objection to
the agency's motion for summary judgment on March 6, 2006. On May 26,
2006, the AJ issued a decision without a hearing.
In her decision, the AJ found that evidence revealed that complainant was
substantially limited in the major life activity of lifting. However,
the AJ found complainant was not a qualified individual with a disability
since she cannot perform the essential functions of the position of the
PTF Mail Processing Clerk with or without reasonable accommodation.
On June 22, 2006, the agency issued a notice of final action fully
implementing the AJ's finding that complainant failed to prove that she
was subjected to discrimination as alleged.
On appeal, complainant states that she was discriminated against based
on her disability when the Orlando Human Resources Department, Central
Florida District, learned of her medical disabilities and limitations.
Complainant states the agency has many positions available for her
within her medical limitations and she states that she has visited other
facilities in the Orlando area and was told that there are limited duty
positions available within her limitations.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "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").
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.
Upon review of the record, we find the AJ properly issued summary judgment
in this case as complainant failed to show that there are material
facts in dispute. Assuming complainant was substantially limited in
a major life activity, we find she has not established that the agency
discriminated against her with regard to the alleged actions.2 The record
reveals that complainant's doctor limited her to four hours of work per
day during which time she may bend/stoop and twist for four hours per
day, drive a vehicle for two hours per day, pull/push, perform simple
grasping, perform fine manipulation, and reach above her shoulders for
one hour per day. Further, in her affidavit complainant states that she
is unable to lift or carry more than 5-10 pounds. The record reveals
that working as a PTF Mail Processing Clerk requires "arduous exertion"
including prolonged standing, walking, bending, reaching and lifting up to
seventy pounds. We find the record shows and complainant does not dispute
on appeal, that she could not perform the essential functions of the PTF
Mail Processing Clerk with or without reasonable accommodation. Moreover,
we note complainant does not contend that her request for reassignment
to the Orlando L&DC was a request for reasonable accommodation for the
lobby greeter position she was performing in San Francisco.
Accordingly, the agency's notice of final action finding no discrimination
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 (Z1008)
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
December 8, 2008
__________________
Date
1 This appeal has been redesignated with the above-referenced appeal
number.
2 We do not address in this decision whether complainant is an individual
with a disability.
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0120064415
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036