0120062353
09-13-2007
Roy C. Hubbard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roy C. Hubbard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200623531
Agency No. 1H-374-0006-04
Hearing No. 250-2005-00225X
DECISION
Complainant filed an appeal from the agency's final action dated January
24, 2006, finding no discrimination with regard to his complaint. In his
complaint, dated January 12, 2005, complainant alleged discrimination
based on race (White), sex (male), and disability (back) when on November
23, 2004, he was informed that he was reassigned to mail processing
effective November 27, 2004.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On January
5, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged reassignment.
The AJ noted that complainant had been employed by the agency since 1979
and was working as a Maintenance Mechanic at the Memphis Bulk Mail Center
when he sustained a back strain injury on October 24, 2004. On November
1, 2004, when complainant came back to work, the agency provided him with
a modified work assignment which included spending two hours at each of
the following activities: checking sorters for air leaks (first level),
checking doors (exterior) for security, checking dock doors, and repair
tipper assembles and photo cells. On November 8, 2004, complainant's
physician diagnosed acute lumbar disc disease and advised that he could
return to work on November 9, 2004, with the following restrictions:
lifting 20 pounds on hour per day; no kneeling, bending, stooping, or
twisting; standing and walking for three hours; one hour of climbing; and
three hours each of simple grasping, fine manipulation, reaching above
the shoulders and operating machinery. The same modified assignment,
described above, was offered to complainant on November 9, 2004.
The AJ, noting the fact that complainant was seen for "back pain" on
November 22, 2004, stated that complainant was clearly provided with
temporary light duty work in Maintenance until November 23, 2004. When he
continued to have medical restrictions which limited him to lifting
no more than 20 pounds for two hours, as well as other restrictions,
management gave him a modified limited duty assignment in Mail Processing
at issue. Management stated that after two weeks of complainant's duty
in Maintenance, it was determined that there was not enough work within
his medical restrictions to keep him in Maintenance full time, but Mail
Processing had a full day's work every day. Management, undisputed by
complainant, stated that they only provided long term light duty work in
Maintenance if the employee's medical restrictions allowed them to lift
at least 25 pounds. The AJ stated that complainant failed to show that
anyone outside of his protected group who was in the same job and had the
same supervisors was treated more favorably when they had a weight lifting
limitation of 20 pounds. Furthermore, despite complainant's claim that
no other employees were treated the way he was, the agency stated that at
least four other employees were also reassigned outside their department.
The agency noted that on March 25, 2005, complainant subsequently provided
medical documentation indicating he could perform the full duties of his
position for four hours per day and then limited duty the remainder of
the day where no lifting or straining was involved, but with a lifting
restriction of 35 pounds. Accordingly, on April 6, 2005, complainant
was offered a modified assignment in the Maintenance which he accepted.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that he
was denied a reasonable accommodation or that any agency actions were
motivated by discrimination. Complainant does not allege that he was
required to perform his duties beyond his medical restrictions.
Accordingly, the agency's final action is 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
09/13/2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120062353
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036