0120071366
05-01-2009
Ray F. Baker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ray F. Baker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071366
Agency Nos. 4G-870-0050-05 & 4G-870-0156-05
Hearing Nos. 350-2005-00263X & 540-2006-00077X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. In the first complaint (Agency
No. 4G-870-0050-05), complainant alleges that he was subjected to
discrimination on the bases of disability (severe plantar fastitus)
and in reprisal for prior EEO activity when:
1. On February 25, 2004, complainant was issued a 7-day suspension for
Unsatisfactory Work Performance/Unacceptable Conduct.
2. On March 1, 2005, complainant was denied reasonable accommodation
when he was informed that he could no longer wear z-coil shoes.
In the second complaint (Agency No. 4G-870-0156-05), complainant alleges
that he was subjected to discrimination in reprisal for prior protected
EEO activity when:
3. During the period from August 13, 2005, through September 23,
2005, management allowed two co-workers to receive more overtime than
complainant.
On December 19, 2006, an EEOC Administrative Judge (AJ) issued a decision
without a hearing finding that there was no genuine issue of material fact
in dispute, and concluded that complainant had not been discriminated
against. Specifically, the AJ found the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut. On December 28, 2006, the agency issued a decision finding
no discrimination. The agency fully implemented the AJ's decision.
Complainant now appeals from that decision. We find that the AJ correctly
defined the issues in the complaint.
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.
We find that the agency articulated legitimate, nondiscriminatory reasons
for its actions. Regarding complainant's claim that he was issued a 7-day
suspension for Unsatisfactory Work Performance/Unacceptable Conduct,
complainant filed a claim with the Department of Labor's Office of
Workers' Compensation Program (OWCP) for an alleged on-the-job injury to
his elbow and right shoulder on December 29, 2004. Complainant claimed
that his condition caused him acute pain, loss of motion, loss of grip,
and severe fatigue, which prevented him from working. Due to his supposed
limited mobility, complainant did not report for duty. Notwithstanding
his medical restrictions, postal inspectors observed complainant cleaning
and reassembling rifles at home. In doing so, complainant performed
tasks such as pushing, pulling, and grasping a rod through the armaments
for a period of four hours, which demonstrated complainant's ability to
return to work. Upon learning of his off-duty activities, the Supervisor
of Customer Service held a pre-disciplinary interview with complainant
on February 23, 2005. During the fact-finding interview, complainant
attempted to justify his prolonged absence, but was not forthcoming
about his behavior. After considering complainant's explanations,
the Supervisor of Customer Service determined that a 7-day suspension
was in fact warranted. The Manager of Customer Service concurred with
the issued discipline stating that complainant was clearly capable of
working during that time, but he clearly elected not to do so.
With respect to complainant's claim that, during the period from August
13, 2005, through September 23, 2005, management allowed two co-workers
to receive more overtime than complainant, the Supervisor of Customer
Service for Tour 1 stated that complainant signed the Overtime Desired
List (OTDL) for the period August 13, 2005, through September 23, 2005.
The Supervisor of Customer Service for Tour 1 asserted that, if he had
work that complainant was qualified to do, he made the decision to work
complainant on overtime The Supervisor of Customer Service for Tour 1
claimed that complainant had limited duty restrictions. The Supervisor
of Customer Service for Tour 1 said that complainant was a Manual
Qualified Clerk. The Supervisor of Customer Service for Tour 1 stated
that complainant was qualified to pitch City Scheme letters and flats,
and could also be utilized to pitch City Parcel Post, Sectional Center
Facility (SFC) flats and letters, and Parcel Post. The Supervisor of
Customer Service for Tour 1 stated that the distribution of overtime
was based on opportunities, and on factors such as: the employee has to
be qualified to do the work that is required; the amount of work based
on mail volume available; and the number of employees on the clock who
are available to do the required work in order to dispatch the required
mail at the scheduled dispatch hour. The agency asserted that the two
coworkers identified by complainant were not similarly situated because
they generally worked different shifts when working overtime and the
two coworkers did not have any medical limitations in working.
Upon review, we find that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons for its actions.
Moreover, complainant failed to show, by a preponderance of the evidence,
that he was discriminated against on the alleged bases.
With regard to complainant's claim that he was denied a reasonable
accommodation, complainant stated that a directive was issued from the
Albuquerque District that z-coil shoes could no longer be allowed on the
work room floor. Complainant stated that he was told by the Manager of
Maintenance that he could no longer wear the z-coil shoes. Complainant
said that the Manager of Maintenance was acting on a directive sent
out by the Albuquerque District, acting on a directive sent out by
the Regional Office in Dallas. Complainant claimed that he was being
discriminated on the basis of disability (severe plantar fastitus)
because he had a note from his doctor stating that the wearing of
the z-coil shoes benefits him greatly. Assuming complainant was a
qualified individual with a disability, we note that complainant did
not provide any medical documentation that he needed to wear z-coil
shoes as an accommodation in order to perform the essential functions
of his limited duty assignment which consisted of casing city letters,
answering phones, performing window call, and clearing the carriers.
Thus, we find complainant did not establish that the agency denied him
a reasonable accommodation. Regarding the disparate treatment nature of
claim 3, we find that the agency articulated a nondiscriminatory reason
for disallowing such footwear, namely, because management deemed it a
safety hazard. Complainant has not shown that this reason was a pretext
for discrimination.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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
May 1, 2009
__________________
Date
2
0120071366
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013