0120070844
03-28-2008
Nancy Brinkley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nancy Brinkley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070844
Agency No. 4C-430-0113-05
Hearing No. 532-2006-00063X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 7, 2006 final order 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.
Complainant alleged that on August 19, 2005, the agency discriminated
against her on the basis of disability (back and knees) when she was
not returned to the Beechwold Station as a reasonable accommodation.
The record indicates that following a serious auto accident, complainant
was given work restrictions that limited her ability to lift, bend
and stand; as such, she was assigned a modified limited duty clerk
position. This position was a non-bid rehabilitation job offer at
Beechwold Station. Following an audit, complainant was excessed from the
Beechwold Station and was not offered retreat rights because she did not
hold a bid position. Several other employees were also required to leave
Beechwold Station. Complainant subsequently accepted a rehabilitation
job offer at City Gate Post Office and became an unencumbered regular
at her new job site. Complainant maintained that agency officials
failed to accommodate her by posting her position to open bidding.
She believed the position should have been offered to her because she
could perform the essential functions of the position. She did not bid
on the position because she did not have enough seniority.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ assigned to the matter issued a
decision without a hearing (summary judgment) finding no discrimination.
Specifically, the AJ found that complainant failed to establish a prima
facie case of disability discrimination because she failed to provide
medical documentation that her back and knee injuries rose to the
level of substantially limiting a major life activity. Nevertheless,
the AJ found that assuming arguendo that complainant was a qualified
individual with a disability, she failed to show that management knew
or had reason to know about her impairments on August 19, 2005. The AJ
found that all of the medical documentation submitted by complainant in
support of her request for an accommodation was dated after the fact.
The agency implemented the AJ's decision.
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999) (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will
be reviewed de novo").
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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
At the outset, we find that there are no genuine issues of material
fact in dispute. For the purpose of analysis only, we assume without
finding that complainant is disabled. We find, however, that she has
not demonstrated that she was denied a reasonable accommodation based
on disability. The record clearly shows that complainant was offered
reasonable accommodation when she was offered the position at the City
Gate Post Office. Moreover, we find that the agency articulated,
legitimate nondiscriminatory reasons for its actions, namely that
complainant was not returned to the position at Beechwold Station when
it opened because, (1) she did not have retreat rights since she had
been in a non-bid position, and (2) she did not have adequate seniority
to bid on the position. Further, we find that complainant failed to
demonstrate that similarly situated employees not of her protected class
were treated more favorably. The record supports that the only employees
that returned to Beechwold Station held bid positions and had retreat
rights. We find that complainant has failed to show that the agency's
legitimate nondiscriminatory reasons were pretext for discrimination.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the Commission finds the AJ's issuance
of a decision without a hearing was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.
The agency's decision is hereby affirmed.
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
___03-28-2008_______________
Date
2
0120070844
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120070844