01a32293
01-14-2005
Robert C. Blaze, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Robert C. Blaze v. United States Postal Service
01A32293
January 14, 2005
.
Robert C. Blaze,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Appeal No. 01A32293
Agency No. 4D-270-0015-02
Hearing No. 140-A2-8260X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and 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. For the
following reasons, the Commission reverses the agency's final order and
remands this matter for the scheduling of a hearing.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's Cary, North Carolina
Post Office facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on November 26, 2001, alleging that he was
discriminated against on the bases of his race (African-American) and
disability (degenerative joint disease and arthritis of left knee) when:
(1) he was refused a light duty assignment after surgery;
he was denied a reasonable accommodation.
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 because the condition of his knee did not cause him to
be substantially limited in a major life activity. In addition, the AJ
found that complainant has had a long standing problem with his knee and
has a degenerative condition but his doctor stated his knee was gradually
improving and projected that he would have a moderate level of normalcy.
The AJ also concluded that because the evidence demonstrated an
African-American female employee had been granted a light duty assignment,
complainant was unable to show he was discriminated against based on his
race. She determined that the agency had legitimate reasons for denying
complainant light duty work - namely that there was no light duty work
available and because complainant failed to provide complete medical
documentation to support what type of work he was able to perform.
The AJ found that complainant had no evidence these reasons were a
pretext for discrimination based on race or disability.
For these reasons and because the AJ concluded it was not her role to
second guess the agency's decisions absent credible evidence to the
contrary, she found no discrimination based on race or disability.
The agency's final action implemented the AJ's decision.
On appeal, complainant contends, among other things, that the agency
was well aware of his medical condition because he had a pre-employment
medical examination which revealed his knee condition. He stated that
the condition of his knee has been aggravated by his job duties and that
the agency failed to adequately discuss his medical condition with him
to assess what he was able to do. As a result, complainant argues he
has not been returned to work for 20 months even though he completed all
requests for medical information from the agency. Complainant argues
that another employee who is a member of his protected group was
also treated harshly after she requested a reasonable accommodation.
Complainant disputes the agency's statement that it made him an offer
of light duty work after he had knee surgery.
The agency argues that complainant was offered light duty work in
response to his request but he refused to accept the offer. The agency
reiterated that it had no permanent light duty work available at the
time of complainant's request and that complainant failed to comply
with its request that he go for a second evaluation. For these reasons,
the agency argues that the AJ's finding of no discrimination was correct
and should be affirmed.
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. 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.
There were two issues decided by the AJ on summary judgment: (1) whether
complainant was treated less favorably than those who were not African
American when he was denied light duty work after having surgery on his
knee; and (2) whether he was a qualified individual with a disability who
was denied a reasonable accommodation. The evidence when viewed in the
light most favorable to complainant establishes that he had a diagnosis
of degenerative joint disease and premature arthritis in his left knee.
He had three knee surgeries in the past and most recently, surgery
to repair a lateral meniscal tear in May 2001. After this surgery,
his treating physician stated again, that he had early degenerative
arthritis in his left knee and that gradually his knee would wear
out and require a complete knee replacement. As of September 2001,
complainant's doctor stated that he had permanent restrictions in his
ability to stand and walk. Updating his evaluation again in November
2001, his doctor stated that complainant should limit his walking,
advising him to sit while completing his work tasks. He further stated
this was a permanent restriction.
Therefore, even though the agency's evaluating physicians painted a
somewhat more positive prognosis, there clearly was a question of fact
whether complainant was substantially limited in the ability to walk and
stand when the statements of his doctor are considered. Additionally,
the agency's evaluation contained the caveat that no endurance testing
was done, and it did not provide a job description outlining complainant's
duties.
Based on this evidence, we conclude the AJ erred in granting summary
judgment on the issue of complainant's disability, specifically, that
there was a genuine dispute whether he was substantially limited in the
major life activities of walking and standing. If, on remand, it is
determined that complainant is a qualified individual with a disability,
the issue becomes whether complainant can be reasonably accommodated in
his position as a distribution mail clerk. We note that no evidence
was obtained on that issue and that the record should be supplemented
accordingly.
Turning to the issue of disparate treatment based on complainant's
race and disability, the record contained the statements of not only
complainant but those of another African-American employee who stated
his requests for medical leave were treated differently than those of
Caucasian employees, and who as a union steward, witnessed derogatory
statements made by supervisors about complainant's medical condition.
Thus, even though there was evidence that another African-American
employee was given temporary accommodations of her medical condition,
the evidence to the contrary created a disputed fact. We note that the
evidence on which the AJ relied indicated other factors were at issue in
the agency's granting of accommodations including, workers' compensation
requirements, the temporary nature �with a valid end date� of the
condition, and whether a request for an accommodation was even on file.
All of those factors must be weighed in determining whether disparate
treatment occurred, an analysis not appropriate on summary judgment.
Also relevant to the issue of disparate treatment, were statements
by the facility's Postmaster and the Customer Service Manager that
offers of light duty work were made to complainant but that he refused
to accept them. Their statements were placed squarely at issue by
complainant's statement to the contrary. In addition, the managers'
statements contradicted their later statements that there was no light
duty work available, calling into question their veracity as well as
the agency's reasons for not taking any action.
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 stated before 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).
Therefore, after a careful and considered review of the record, we find
that the AJ erred when she concluded that there was no genuine issue of
material fact in this case and that a hearing was not necessary.
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 Charlotte District
Office, the complainant's 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
January 14, 2005
__________________
Date