01A14667
08-07-2003
Johnny C. Robbins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Johnny C. Robbins v. United States Postal Service
01A14667
August 7, 2003
.
Johnny C. Robbins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14667
Agency No. 4G-760-0247-99
Hearing No. 310-AO-5053X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
BACKGROUND
The record reveals that complainant, a Full Time City Carrier, PS-05 at
the agency's Lone Star Station in Amarillo, Texas, filed a formal EEO
complaint on July 19, 1999, alleging that the agency had discriminated
against him on the bases of race (Caucasian), sex (male), disability
(toe stress fracture), and reprisal for prior EEO activity when his
request for light duty was denied.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on the bases of race and sex. Specifically,
the AJ found that complainant failed to demonstrate that similarly
situated employees not in complainant's protected classes were treated
differently under similar circumstances. The AJ found that complainant
alleges discrimination when he was denied light duty work, alleging
that others have been provided limited and light duty. However, the AJ
found that the others to whom complainant compares himself, including
Caucasian males, had less severe restrictions than he, and none of the
others to whom complainant compares himself were provided light duty by
complainant's supervisor. Further, the AJ noted that complainant was
provided limited duty until his claim was rejected by the Department
of Labor. Finally, the AJ found that while the agency may be required
to create work for an employee injured on the job, there is no such
requirement under the Rehabilitation Act.
The AJ also found that complainant does not meet the definition of
an individual with a disability, because complainant did not have
a permanently disabling condition. The AJ noted that complainant's
injuries occurred in April 1999 and were healed by September 1999.
The AJ found that even assuming that complainant established a prima
facie case, the Agency articulated a legitimate, non-discriminatory
reason for its actions. Specifically, the AJ found that complainant
was previously provided �make work�; however, once complainant was not
considered a limited duty employee, the Agency was not required to �make
work� for him. Finally, the AJ found that complainant failed to prove
that the Agency's reason was a pretext for discrimination.
The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
Summary Judgment
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.
Disability
The Rehabilitation Act prohibits discrimination against qualified
disabled individuals. See 29 C.F.R.1630. One bringing a claim of
disability discrimination must first establish that s/he is a member
of the class of persons protected by the Rehabilitation Act, i.e., a
qualified individual with a disability. An "individual with a disability"
is defined as someone who: (1) has a physical or mental impairment which
substantially limits one or more of such person's major life activities;
(2) has a record of such an impairment; or (3) is regarded as having
such an impairment. 29 C.F.R. 1630.2(g)(1)-(3).<1> The Commission
has defined �substantially limits� as �[u]nable to perform a major
life activity that the average person in the general population can
perform� or �[s]ignificantly restricted as to the condition, manner or
duration under which an individual can perform a particular major life
activity as compared to the condition, manner, or duration under which
the average person in the general population can perform that same major
life activity.� 29 C.F.R. 1630.2 (j)(1)(i) and (ii). In determining
whether an individual is substantially limited in a major life activity
one must consider �[t]he nature and severity of the impairment,� �[t]he
duration or expected duration of the impairment,� and �the permanent or
long term impact, or the expected permanent or long term impact of or
resulting from the impairment.� 29 C.F.R. 1630.2(j)(2)(i), (ii), and
(iii). �Major life activities� include functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, and working. 29 C.F.R.1630.2(i). Other major life activities
include thinking, concentrating, interacting with others, and sleeping.
EEOC Enforcement Guidance on The Americans with Disabilities Act and
Psychiatric Disabilities at 5 (March 25, 1997).
Pursuant to 29 C.F.R. 1630.9(a), an agency is required to make reasonable
accommodations for the known physical or mental limitations of an
otherwise qualified applicant or employee with a disability. The only
exception is where the agency can demonstrate that the accommodation
would impose an undue hardship. Complainant's request for light duty,
was a request for a reasonable accommodation. However, in order to be
entitled to a reasonable accommodation (absent undue hardship on the
part of the agency), complainant must first establish that he is an
individual with a disability.
We first address whether complainant was a person with a disability.
Complainant has identified, a temporary injury to a toe on his left
foot on or around December 22, 1998 and/or April 3, 1999 as the sole
impairment necessitating a reasonable accommodation. The record reveals
that complainant did not suffer a permanent disabling condition. The
complainant's injuries occurred in April 1999 and were healed by September
1999. Therefore, complainant does not meet the definition of an individual
with a disability. The condition, a toe fracture, did not limit any major
life activity on more than a temporary basis. The Commission agrees with
the AJ's decision that complainant failed to establish a prima facie case
of disability. We find that complainant impairment did not substantially
limit any major life activity. Bell v. United States Postal Service,
EEOC Appeal No. 01986889 (August 16, 2001).<2>
Disparate Treatment
Applying the standards set forth in Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); and McDonnell Douglas Corp.,
v. Green, 411 U.S. 792 (1973), the Commission's concurs with the AJ's
finding that complainant did not establish a prima facie case of race
or sex discrimination. There is no evidence in the record of other
similarly situated employees outside of complainant's protected groups
being allowed light duty work by complainant's supervisor. Nor is there
any other evidence that would support a finding that complainant had
been discriminated against on these bases.
Reprisal
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978); Hochstadt v. Worcester Foundation for Experimental
Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F. 2d 222
(1st Cir. 1976) (applying McDonell to reprisal cases), Shapiro v. Social
Security Administration, EEOC Request No. 05960403 (December 6, 1996).
Specifically, in a reprisal claim, and in accordance with the burdens set
forth in McDonnell Douglas, a complainant may establish a prima facie case
of reprisal showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000). The causal connection may be shown by evidence
that the adverse action followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,1996)
(citations omitted). We find that complainant failed to establish a
prima facie case of reprisal. The record reveals that complainant's
supervisor was unaware that complainant had engaged in prior EEO activity.
In conclusion, after a de novo review of the record, we find that there
are no genuine issues of material fact. The Commission finds that the AJ
correctly decided that summary judgment was appropriate in this case, and
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, we AFFIRM the agency's final
decision finding no discrimination
POSTING ORDER (G0900)
The agency is ordered to post at its facility copies of the attached
notice. Copies of the notice, after being signed by the agency's duly
authorized representative, shall be posted by the agency within thirty
(30) calendar days of the date this decision becomes final, and shall
remain posted for sixty (60) consecutive days, in conspicuous places,
including all places where notices to employees are customarily posted.
The agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed
notice is to be submitted to the Compliance Officer at the address cited
in the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
August 7, 2003
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2Nor would the record support a finding that complainant was
regarded as having a disability, or that complainant had a record of a
disability. [Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.]