07A30046
09-30-2004
Wayne C. Jarvis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wayne C. Jarvis v. United States Postal Service
07A30046
September 30, 2004
.
Wayne C. Jarvis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A30046
Agency No. 1B-012-0052-01
Hearing No. 160-A2-8259X
DECISION
Simultaneously with its December 3, 2002 final order, the agency timely
filed an appeal which the Commission accepts pursuant to 29 C.F.R. �
1614.405. The agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that it discriminated against
the complainant based on his disability (15 pound lifting restriction,
no prolonged sitting/standing, no pushing and pulling, and intermittent
kneeling, bending, stooping and twisting) when he was denied overtime
opportunities since March 1, 2001.
BACKGROUND
The complainant is employed as a Modified Mail Handler at the
agency's Springfield, Massachusetts Bulk Mail Center (BMC). He filed a
complaint claiming the above issue, except alleging a denial of overtime
opportunities dating back to June 6, 2000. Following an investigation,
the complainant requested a hearing before an EEOC AJ. Pursuant to
29 C.F.R. � 1614.109(g)(3), the AJ issued a notice of intent to issue a
decision without a hearing. The agency responded with argument that there
were no genuine issues of material fact and there was no discrimination.
The complainant responded that he was discriminated against, and
submitted documentary evidence and statements. The complainant, who
was represented by a non-attorney representative, responded both that
there was a genuine issue of material fact and the AJ should issue a
decision without a hearing. The AJ issued a final decision without a
hearing finding there was no genuine issue of material fact, finding
discrimination, and ordering equitable remedies. In response to the
agency's appeal, the complainant makes no comment.
Following a back injury in August 1996, the complainant was reassigned in
July 1998 under the agency's rehabilitation program to the position of
Modified Mail Handler, Tour II. The duties were to work in the re-wrap
area and, to a lesser extent, the debris area. Re-wrap involved patching
up or re-wrapping damaged letters, magazines and small parcels at a table.
Debris involved organizing at a table like mail found loose in postal
handling, and light movement of mail. The medical restrictions of the
position were no lifting over 15 pounds intermittently, no pushing or
pulling, no prolonged sitting and standing, and only intermittent
kneeling, bending, stooping, and twisting, compliant with the
complainant's medical limitations.
During the relevant period, the agency offered overtime to Tour II mail
handlers, as volume required. It was offered before and after tours
and on employee days off, and while not clear, perhaps on holidays.
Mail handler overtime offers were posted in two ways, i.e., in an open
fashion, regardless of medical restriction, and in a closed fashion,
meaning only to those who could perform all sack shakeout (SSO), sack
sorting machine (SSM), inbound; outbound; non-machinable (NMO), and
container loader operations (CLO). The Tour II Senior Distribution
Operations Manager (Manager) stated that these functions, along with
equipment operation, comprised most of mail handler work, and it was all
heavy duty. He explained that SSO involved emptying sacks with heavy
lifting up to 70 pounds and a lot of standing; that SSM involved sorting,
stuffing, and bundling mail sacks with much standing and dragging full
sacks; that inbound and outbound mail involved, respectively, retrieval
and distribution, and gathering and dispatching necessitating the above
motions and pushing and pulling; that NMO and CLO both necessitated
lifting up to the limit (presumably 70 pounds), and NMO and CLO involved,
respectively, moving around unusually heavy and awkward packages, and
lifting and moving heavy sacks, and containers weighing hundreds of
pounds; and equipment operation required much sitting, jiggling, and
twisting (due to going backward half the time).
The Manager stated that the collective bargaining agreement (CBA) local
contract sets aside the few nonphysical (light) mail handler duties for
medically restricted mail handlers, e.g., re-wrap, segregating sacks,
final clean-out of almost empty hampers, preparing bundles of mail to be
machined, traying letters, marking forklift skids, and hand stamping mail.
He indicated that given the heavy nature of most mail handler work and
the dearth of light work, and that formal medical restrictions almost
always restricted heavy physical activity, there was virtually no overlap
between what restricted and non-restricted mail handlers could do.
The Manager affirmed that when light mail handler work was available
on overtime, the restricted mail handlers almost always got all of it,
and this usually coincided with unrestricted mail handlers getting all
the overtime they could handle. The Manager stated that while there
was some light work left undone at any particular moment in a 24 hour
operation, it would not be shifted to overtime unless it could not be
done without it. During the sample period of August 21, 2001 through
January 2002, according to the investigative report, of the 147 occasions
before-tour mail handler overtime was posted, it was open to restricted
mail handlers 90 occasions; of the 142 occasions day-off mail handler
overtime was posted, it was open to restricted mail handlers 81 times;
of the 110 occasions after tour mail handler overtime was posted, it
was open to restricted mail handlers 39 times. Restricted mail handlers
were those who for medical reasons could not perform all the heavy duty
activities in the posted offers of overtime.
In response to the AJ's notice of intent to issue a decision without
a hearing, the complainant and his representative, a limited duty mail
handler in the same facility, argued that there was an overabundance of
re-wrap work. The complainant claimed, in effect, that closed overtime
was not as invariably heavy as the Manager claimed. In support of
this, he submitted a number of statements. One was a December 2000
affidavit by the Manager in another case. There, the Manager conceded
that a permanent light duty Mail Handler 1 was permitted to work closed
overtime. He explained that Mail Handler 1 could perform the duties of
his SSO position. Medical documentation submitted by the complainant
indicated that Mail Handler 1 was restricted to lifting 20 to 30 pounds.
In their response, the complainant and his representative argued that
while, for example, the agency may solicit 10 mail handlers for overtime
inbound mail, this did not mean they all actually did that work. Instead,
according to the complainant and his representative, most mail handlers
accepted for overtime do their normal bids, i.e., perform their regular
duties. In support of this, they submitted a portion of the CBA local
agreement which provides that mail handlers scheduled for overtime shall
be assigned to their bid assignment if work is available.
In his response, the complainant submitted a statement by BMC Tour II
Mail Handler 2. She wrote that she had a re-wrap bid, that from June 6,
2000 to September 7, 2000 she worked almost every before tour and day off
overtime opportunity, and that she was assigned to re-wrap and/or assist
mail handlers on the floor. Mail Handler 2 wrote that she saw other mail
handlers perform re-wrap functions on overtime. Mail Handler 2 did not
state whether this occurred during closed overtime. The record contains
no evidence regarding whether Mail Handler 2 had medical restrictions,
albeit the Manager stated the CBA local contract set aside re-wrap for
restricted mail handlers.
The complainant and his representative also submitted in his response of
May 2001 statements from Mail Handlers 3, 4, 5 and 6 who they contended
worked light, limited and rehabilitation duties during overtime.
Mail Handler 3 had a bullpen bid. Mail Handlers 3, 4, and 6 indicated
they are offered bypass area (apparently debris work) on their day off
overtime. Mail Handlers 3 and 6 stated this was routine. Mail Handler
6 added this was routinely offered to other mail handlers, as well as
day off overtime bullpen work. Mail Handler 5 recounted one instance
of being offered a full day of bypass area overtime. Mail Handlers
3 and 6 stated they worked at the Chicopee Annex, and Mail Handlers
4 and 5 did not indicate where they were stationed. The record does
not reflect whether the Chicopee Annex is part of the Springfield BMC,
nor contain any information regarding whether Mail Handlers 3, 4, 5 and
6 have medical restrictions.
As an initial matter, the AJ found that the complainant was an individual
with a disability. The AJ found that the complainant claimed the
agency had a blanket overtime policy where all individuals with medical
restrictions were denied overtime work, and the agency did not deny this.
The AJ found that in concluding that the complainant was incapable
of performing any overtime offered to unrestricted mail handlers, it
failed to engage in an interactive discussion to determine if there were
reasonable accommodations available nor do an individualized assessment
of the complainant's ability to perform such functions with or without
reasonable accommodation. The AJ ruled that in the absence of any
proffered evidence that no reasonable accommodation exists, there was
a per se violation of the Americans with Disabilities Act (ADA), which
requires employers to engage in an interactive process to determine
the existence of reasonable accommodations. Further, referring to Mail
Handlers 1 and 3�6, the AJ found that other mail handlers with lifting
restrictions were accommodated during overtime. The AJ also found that
the agency did not show it would have been an undue hardship on its
operations to accommodate the complainant during overtime.
ANALYSIS AND FINDINGS
On appeal, the agency contends that the AJ erroneously found that the
complainant was restricted from lifting above 15 pounds, and that this
error of fact led the AJ to erroneously find that the complainant is an
individual with a disability. The agency points to the rehabilitation
job offer, which listed the complainant's lifting restriction as �no
lifting over 15 lbs. maximum intermittently.� The agency argues that
this means the complainant could lift over 15 pounds intermittently.
The AJ relied on this exhibit. The agency has not shown that the AJ's
interpretation of this exhibit was incorrect. In fact, the Manager
affirmed the complainant's lifting restriction was �lifting no more than
fifteen lb.� Further, in an unsigned portion of his response argument,
the complainant stated that as of March 2002 his lifting restriction
was 15 pounds. While the complainant had back surgery in December 1999
and in May 2000 an orthopaedic surgeon opined that the complainant could
lift 5 to 10 pounds continuously, and 15-20 pounds intermittently, given
the Manager's affidavit, the evidence shows the lifting restriction
was actually 15 pounds. For the reasons found by the AJ, we find
that the complainant is an individual with a disability. Further,
the complainant was qualified because he could perform the essential
functions of his modified mail handler position. 29 C.F.R. � 1630.2(m).
Durinzi v. United States Postal Service, EEOC Appeal No. 01A11800 (July
18, 2003), request for reconsideration denied, EEOC Request No. 05A31158
(September 24, 2003).
The agency argues that it is not required to shift mail handler work
within the complainant's restrictions to overtime where this is not
cost effective as a form of reasonable accommodation. An agency is
not required to create a job as a form of reasonable accommodation.
Castenda v. United States Postal Service, EEOC Appeal No. 01951445
(September 18, 1998). By the same token, where there is no overtime work
an employee can perform with or without a reasonable accommodation, an
agency is not required to �make work� to provide the employee overtime.
Williams v. United States Postal Service, EEOC Appeal No. 01986160
(June 16, 2000). However, where an employee can perform the essential
functions, with or without reasonable accommodation, of mail handler
work being performed on overtime, the complainant is entitled to an equal
opportunity to bid for and perform that work. Spaulding v. United States
Postal Service, EEOC Appeal Nos. 01982863 & 01991949�53 (September 14,
2001). Through the submission of the above described various statements,
the complainant makes this claim, i.e., during closed overtime, there were
light duty mail handler bids being performed. The Manager disputes this.
Next, citing Commission precedent, the agency correctly argues that
failure to engage in the interactive process does not constitute a per
se violation of the ADA. In Broussard v. United States Postal Service,
EEOC Appeal No. 01997106 (September 13, 2002), the Commission ruled
that an agency's failure to engage in the interactive process does
not, by itself, demand a finding that the complainant was denied a
reasonable accommodation. Rather, to establish a denial of reasonable
accommodation, the complainant must show that the failure to engage in
the interactive process resulted in the agency's failure to provide a
reasonable accommodation. Id. Further, the complainant contends that
he was disparately treated based on his disability status when he was
denied closed overtime. This is unrelated to the interactive process.
Citing to Mail Handler 1, the AJ found that it was unrebutted that mail
handlers were not required to lift up to 70 pounds on closed overtime.
Mail Handler 1 had a 20 to 30 pound lifting restriction, and was on
permanent light duty. The Manager explained that Mail Handler 1 could
work on closed overtime because he was able to perform the duties of
his SSO mail handler position. The complainant's lifting restriction,
however, of 15 pounds is significantly less than the above, and the
complainant had a number of other substantial limitations, such as no
pulling or pushing, which are common mail handler movements. Citing
to Mail Handlers 1, and 3�6, the AJ found that other mail handlers
with restrictions were accommodated with the provision of overtime.
The record, however, does not indicate whether Mail Handlers 3�6
worked in the BMC, or were otherwise under the Manager's supervision.
The complainant did not claim this.
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.
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 AJ erred when
the AJ concluded that there was no genuine issue of material fact in
this case. First, finding a per se violation was an error of law. Next,
there is a genuine issue of material fact regarding whether there was
mail handler position work within the complainant's restrictions which
he could perform the essential functions of with or without reasonable
accommodation, e.g., light work such as re-wrap or bullpen, during
closed overtime. The Manager affirmed, in effect, that during closed
overtime there were no mail handler positions with duties coming close
to the complainant's restrictions. The Manager affirmed when there was
light work available during overtime, it was opened.
Given that there is a genuine issue of material fact as to whether the
complainant could perform the essential functions, with or without
reasonable accommodation of his mail handler position during closed
overtime, the AJ improperly found discrimination without holding
a hearing.
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, in appropriate
instances, to examine and cross-examine witnesses." See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); 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). In summary,
there are simply too many unresolved issues which require an assessment
as to the credibility of the various management officials, co-workers,
and the complainant, himself.
Referring to overtime sign up sheets and lists the complainant submitted
with his response, the AJ found that the complainant made the agency
aware of his continuous desire to work overtime from March 2001 to
March 2002. While these sheets and lists actually cover a period of
March 2001 through June 2002, it is unclear whether they were intended
as a complete list. The complainant claimed that he was discriminatorily
denied overtime from June 6, 2000 forward.<1>
CONCLUSION
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 VACATES the
agency's final action and the AJ's decision, 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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
September 30, 2004
__________________
Date
1In response to the AJ's notice of intent to issue a decision without a
hearing, the complainant and his representative appeared to state that
the alleged discriminatory overtime policy ceased in mid-June 2002,
albeit it is not completely clear this is what was stated.