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.