Recardo M. Evans, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.

Equal Employment Opportunity CommissionSep 9, 2002
01A14580 (E.E.O.C. Sep. 9, 2002)

01A14580

09-09-2002

Recardo M. Evans, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.


Recardo M. Evans v. United States Postal Service

01A14580

September 9, 2002

.

Recardo M. Evans,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Capital Metro Area),

Agency.

Appeal No. 01A14580

Agency No. 4K200010899

Hearing No. 120-AO-3414

DECISION

Complainant timely initiated an appeal from a final agency order

concerning his 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.<1> The appeal is accepted

pursuant to 29 C.F.R. � 1614.405. For the following reasons, the

Commission vacates and remands the agency's final order.

The record reveals that during the relevant time, complainant was employed

as a Distribution Window Clerk at the agency's Bowie-Mitchellville

Post Office. Complainant sought EEO counseling and subsequently filed

a formal complaint on May 12, 1999, alleging that he was discriminated

against on the basis of his disability (reconstructed knee and herniated

disk) when on March 27, 1999, he was placed into the normal rotation for

assignments despite documentation having been presented to the Southern

Maryland Health Unit and the Mitchellville Post Office describing his

duty limitations.

At the conclusion of the investigation, complainant was provided with

a copy of the investigative file and requested a hearing before an EEOC

Administrative Judge. Concluding that complainant failed to establish

that he was a qualified individual with a disability, the Administrative

Judge issued a decision without a hearing finding no discrimination.

On January 16, 2001, the agency issued a Notice of Final Action fully

implementing the Administrative Judge's decision. This appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an Administrative Judge 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 Administrative Judge

may properly consider summary judgment only upon a determination that

the record has been adequately developed for summary disposition.

The courts have been clear that summary judgment is not to be used as

a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st

Cir. 1975). The Commission has noted 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 Administrative

Judge erred when he concluded that there was no genuine issue of

material fact in this case. The Administrative Judge properly viewed the

evidence in the light most favorable to complainant when determining that

complainant was an individual with a disability.<2> However, in finding

that complainant failed to establish that he was a qualified individual

with a disability, the Administrative Judge stated that there was

inadequate information in the record to decide whether or not complainant

was able to perform the essential functions of the Distribution Window

Clerk position.<3> The issue of whether or not complainant was able

to perform the essential functions of the Distribution Window Clerk

position, is a material issue of fact because under the Rehabilitation

Act, any employee who is a �qualified individual with a disability� is

generally entitled to a reasonable accommodation for such disability.

See 29 C.F.R. � 1630.9(a) (holding that it is �unlawful for a covered

entity [such as the agency] not to make reasonable accommodation to the

known physical or mental limitations of an otherwise qualified applicant

or employee with a disability, unless such covered entity can demonstrate

that the accommodation would impose an undue hardship on the operation

of its business�). Reasonable accommodation may include reassignment

to another position. Ignacio v. United States Postal Service, EEOC

Petitioner No. 0340005 (September 4, 1984), aff'd, 30 M.S.P.R. 471

(Spec. Pan. February 7, 1986).<4>

On the other hand, the agency does not have to eliminate an essential

function, i.e., a fundamental duty of the position. This is because

a person with a disability who is unable to perform the essential

functions, with or without reasonable accommodation, is not a �qualified�

individual with a disability. Nor is an employer required to lower

production standards -- whether qualitative or quantitative -- that are

applied uniformly to employees with and without disabilities. See EEOC

Enforcement Guidance: Reasonable Accommodation and Undue Hardship under

the Americans with Disabilities Act (March 1, 1999).

We note that the hearing process is intended to be an extension of the

investigative process, designed to �ensure that the parties have a fair

and reasonable opportunity to explain and supplement the record and to

examine and cross-examine witnesses.� See EEOC Management Directive

(MD) 110, as revised, November 9, 1999, Chapter 7, page 7-1; see also

29 C.F.R. � 1614.109(e). �Truncation of this process, while material

facts are still in dispute and the credibility of witnesses is still

ripe for challenge, improperly deprives complainant of a full and fair

investigation of her claims.� Mi S. Bang v. United States Postal Service,

EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. United

States Postal Service, EEOC Request No. 05950628 (October 31, 1996);

Chronister v. United States Postal Service, EEOC Request No. 05940578

(April 23, 1995). Judgment as a matter of law for the agency should

not have been granted to the agency.

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 reverses the

agency's final action and remands the matter to the agency in accordance

with this decision and the Order below.

ORDER

The agency shall submit to the Hearings Unit of the appropriate EEOC field

office the request for a hearing within fifteen (15) calendar days of

the date this decision becomes final. The agency is directed to submit a

copy of the complaint file to the EEOC Hearings Unit within fifteen (15)

calendar days of the date this decision becomes final. The agency shall

provide written notification to the Compliance Officer at the address set

forth below that the complaint file has been transmitted to the Hearings

Unit. Thereafter, the Administrative Judge shall issue a decision on the

complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall

issue a final action in accordance with 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

September 9, 2002

__________________

Date

1 The 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.

2 Since summary disposition was inappropriate for other reasons, this

decision is not dispositive as to whether or not complainant established

that he is an individual with a disability within the meaning of the

Rehabilitation Act.

3 The Administrative Judge states �[i]t is not possible from the record

to discern whether there were enough employees at the complainant's

office so that some employees regularly accomplish functions so that

those functions would not be ones which were essential for complainant

to perform.�

4 The agency is advised that 29 C.F.R. � 1614.203(g), which governed

and limited the obligation of reassignment in the Federal sector, has

been superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02), to

be codified as 29 C.F.R. � 1614.203(b). The ADA standards apply to all

conduct on or after June 20, 2002, and emphasize, among other things, a

broader search for a vacancy. The ADA regulations regarding reassignment

can be found at 29 C.F.R. �� 1630.2(o) and 1630.9. Additional information

can be found in the Appendix to the ADA regulations and in the EEOC's

Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under

the Americans with Disabilities Act (March 1, 1999) at Questions 25-30.

These documents are available on the EEOC's website at www.eeoc.gov.