01A21661
03-13-2003
Mary J. Williams, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Mary J. Williams v. Department of Veterans Affairs
01A21661
March 13, 2003
.
Mary J. Williams,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A21661
Agency No. 200I-2774
Hearing No. 140-A1-8297X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning her complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges she was discriminated
against on the basis of disability (back injury) when:
she was terminated and her appointment was not renewed; and
she was not selected for other positions.
For the following reasons, we AFFIRM the agency's final action
implementing the administrative judge's grant of summary judgment.
The record reveals that during the relevant time, Complainant was employed
as a Housekeeping Aid at the agency's Veterans Administration Medical
Center in Columbia, South Carolina.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on August 28,
2000. At the conclusion of the investigation, complainant was provided
a copy of the investigative file 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 disability discrimination because she failed to show she was able
to perform the essential functions of her position distributing linen.
He concluded that the testimony was undisputed that because of a back
injury, complainant was unable to lift, bend or stoop. The AJ concluded
that complainant was substantially limited in the major life activity
of performing manual tasks but that she was not a qualified individual
with a disability because of her inability to perform her job. The AJ
found that the record established the agency accommodated complainant's
back condition on a temporary basis but her condition was only temporary
in nature and consequently, the agency was not required to provide her a
reasonable accommodation. In addition, the AJ found there was no evidence
that she was treated less favorably because of her medical condition.
The agency's final action implemented the AJ's decision.
On appeal, complainant contends, among other things, that her rights as
a disabled veteran<1>, were violated. She also asserts that when she was
released to full duty she asked for the accommodation of being reassigned
because she continued to have back problems. Complainant contends that
she was refused a reassignment and unlawfully terminated. She also
contends she was refused consideration for other positions because of her
disability. She contends that her back condition constitutes a disability
because she has developed arthritis and because it affects her daily life.
The agency stands on the record and requests that we affirm its final
action implementing the AJ's decision.
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. This regulation is patterned after summary judgment 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 does not sit as a fact finder. Id.
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. A disputed 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 under Title VII, an AJ may properly consider
summary judgment only upon a determination that the record has been
adequately developed for summary disposition.
Courts have been clear that summary judgment is not to be used as a
"trial by affidavit." See e.g. Redmand v. Warrener, 516 F.2d 766, 768
(1st Cir. 1975). The Commission has held that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ was correct in
concluding that there were no genuine issues of material fact in this
case. In our discussion of complainant's disparate treatment claim,
we will assume that complainant meets the definition of an individual
with a disability within the meaning of the law.
Even assuming complainant was an individual with a disability, complainant
failed to put forth enough evidence to create a question of fact that
others who were not disabled were treated more favorably than her.
Rather complainant referred in her testimony to reasons other than her
disability such as the fact that others were treated more favorably
because they were part of the group or a �gang� and she was not.
In addition, complainant failed to raise an issue of fact regarding the
agency's reasons for terminating her employment and not considering her
for other positions. That is, complainant's supervisor and the Chief of
the Environmental Management both stated that complainant's appointment
was not renewed because she did not perform her duties well while she
was on the job and that there were complaints from other employees
about her performance. Complainant did not contest this statement,
nor did she offer enough evidence to create a question of fact that the
agency's reasons for not rehiring her were a pretext for discrimination.
Complainant claimed that her supervisor stated she would not be re-hired
because of her back injury but aside from her own bare assertion, she
failed to offer any corroborating evidence to support her contention.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS the
agency's final action.
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, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant's claim as a disabled veteran are not actionable under the
Rehabilitation Act and as such are not addressed herein.