0120110220
03-04-2011
Jevon Moore, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Jevon Moore,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120110220
Hearing No. 532-2009-00107X
Agency No. 1C-441-0079-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 9, 2010 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant was employed as a Mail Processing Clerk, PS-06, at the Agency's Cleveland, Ohio Processing and Distribution Center.
On October 20, 2008, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of sex (male) and disability (back) when:
on or about August 30, 2008, he was sent to work in the Automation Center and subsequently, on September 4, 2008, he was sent home early after being told there was no work for him to do within his restrictions.
The record reflects that Complainant claimed that he is a ten-point disabled veteran. The record further reflects that Complainant has experienced chronic back pain since 1992. Complainant's medical condition limits the ability to walk. He can only walk for short periods of time, no longer than fifteen minutes without experiencing substantial pain. Complainant can stand no longer than three hours at a time. The record reflects that repetitive bending and twisting are detrimental to his well being.
A review of Complainant's CA-17 Duty Status Report dated August 15, 2008 reflects a diagnosis of lumber back strain with work restrictions of lifting twelve pounds, one to two hours per day; sitting three to four hours per day; standing one to three hours per day; walking one to two hours per day; bending/stooping one hour per day; twisting one hour per day; pulling/pushing one to two hours per day; simple grasping eight hours per day and reaching above shoulders two to three hours per day.
By letter dated August 1, 2008 from a Manager, Distribution Operations (MDO), Complainant was notified that he was to be excessed as a result of a scheduling and staffing review of the City Mailing Tour 3 section. MDO encouraged Complainant to bid on posted vacancies for which he was eligible. By letter dated August 19, 2008, MDO notified Complainant that he was to be excessed effective August 30, 2008 and assigned to Automation Unit, Tour 3 and was again encouraged to bid on posted vacancies for which he was eligible. The record reflects that during the relevant time, Complainant was neither on light duty nor limited duty status when he was excessed. The record reflects that on September 4, 2008, MDO called Complainant to her office, reviewed his restrictions and advised him to end tour and go home because there was no work available for him within his restrictions.
Further, the record reflects that on December 18, 2008, Complainant met with the District Reasonable Accommodation Committee (DRAC) concerning his request for accommodation. Specifically, Complainant requested to be assigned to a position that does not require repetitive bending/twisting. On January 26, 2009, DRAC denied Complainant's request. The record reflects that in January 2009, Complainant requested and was granted light duty.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On August 31, 2010, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final action.
In his decision, the AJ found no discrimination. The AJ found that Complainant did not establish a prima facie case of sex and disability discrimination.1 The AJ further found even if Complainant established a prima facie case of sex and disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
MDO stated that Complainant was assigned to the Automation Unit after his former position was abolished because "with the reduction in mail volume it was necessary to reduce the number of positions in that unit and all junior employees were assigned to the automation unit." MDO further stated that on September 4, 2008, she sent Complainant home because there was no work available within his restrictions. MDO stated that Complainant "is currently working Light Duty on Tour 3. Although there is no work available that he can physically do, he sits at a table for approximately four (4) hours per day." Furthermore, MDO stated that she did not discriminate against Complainant based on his sex and disability.
On appeal, Complainant, through his representative, argues that before being assigned to light duty, he had never requested any accommodation and he "was targeted out because of his disability and was force to lose retirement benefits and salary for over 3-4 months. The reasonable accommodation committee did not view Complainant's request and provide him with accommodation on another tour, or craft."
ANALYSIS AND FINDINGS
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, 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, we can discern nothing in the record reflecting the discriminatory animus motivated the Agency actions in the instant claim. Therefore, 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 unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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
March 4, 2011
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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