01A22398
08-21-2003
Willie Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Willie Johnson v. United States Postal Service
01A22398
August 21, 2003
.
Willie Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A22398
Agency No. 4G-780-0063-00
Hearing No. 360-AO-8467X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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 AFFIRMS
the agency's final order.
The record reveals that at the relevant times, complainant was employed
by the agency as a Laborer Custodian, PS-03, at the Mockingbird Station
located in Austin, Texas. Complainant filed a formal EEO complaint on
January 12, 2000, alleging that the agency discriminated against him on
the bases of race (African-American) and disability when:
On October 29, 1999, he became aware that the Injury Compensation Office
had not received a Form CA-2 that he left on the desk of his supervisor
(S1) on October 12, 1999; and
On November 1, 1999, he was instructed to clock out because there was
no light duty available at the station.<1>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ subsequently issued a Notice of Intent
to Issue a Decision Without a Hearing. At that point, complainant made
an additional submission. The AJ nevertheless issued a decision without
a hearing, finding no discrimination.
The AJ found that complainant established a prima facie case of race
discrimination. The AJ additionally found that complainant did not
establish a prima facie case of disability discrimination, because
he failed to show that he is an individual with a disability. The AJ
further found, as to issue (1), that the agency articulated a legitimate,
nondiscriminatory reason for its action; namely, complainant did not
leave the Form CA-2 in the designated in-box, and S1 did not see the
form on her desk prior to October 27, 1999, when she left for vacation.
The AJ found that complainant failed to proffer evidence to indicate
that this reason was pretextual. As to issue (2), the AJ found that the
agency articulated the following legitimate, nondiscriminatory reason:
on November 1, 1999, complainant gave his work restrictions to S1,
but because there was no light duty available S1 sent complainant home.
The AJ found no evidence to suggest that the decision to send complainant
home was based on impermissible discrimination. The agency's final
order implemented the AJ's decision.
On appeal, complainant contends that the agency failed in its obligation
to engage in a simple dialogue with him regarding his disability before
suspending his employment. The agency stands on the record, and requests
that we affirm its final order.
The Commission's regulations allow an AJ to issue a decision without a
hearing when 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, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed. See Petty v. Department of Defense, EEOC Appeal No. 01A24206
(July 11, 2003). In the instant case, we find that the AJ correctly
determined that there were no genuine issues of material fact, and that
a decision without a hearing was appropriate.
As to issue (1), assuming arguendo complainant established a prima facie
case of race and disability discrimination, we find that the agency has
nevertheless articulated a legitimate, nondiscriminatory reason for its
action; namely, complainant did not leave the Form CA-2 in the designated
in-box, and S1 did not see the form on her desk prior to October 27,
1999, when she left for vacation. The record is devoid of evidence that
this reason is a pretext for race or disability discrimination.
As to issue (2), we initially find that complainant's submission of a
�Request for Temporary Light Duty Assignment� with an attached medical
statement on November 1, 1999, constitutes a request for reasonable
accommodation.<2> See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915.002, Question 1 (rev. Oct. 17, 2002) (�When an individual
decides to request accommodation, the individual or his/her representative
must let the employer know that s/he needs an adjustment or change at work
for a reason related to a medical condition. To request accommodation,
an individual may use "plain English" and need not mention the ADA or
use the phrase "reasonable accommodation.�).
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and
(p). As a threshold matter, however, complainant must establish that he
was a �qualified individual with a disability� in order to be entitled
to coverage under the Rehabilitation Act. Assuming, for the sake of
argument, that complainant is an individual with a disability within
the meaning of the Rehabilitation Act, we conclude that complainant
failed to prove, by a preponderance of the evidence, that he was a
qualified individual with a disability during the relevant time period.
A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education
and other job related requirements of the employment position such
individual holds or desires, and who, with or without reasonable
accommodation, can perform the essential functions of the position.
29 C.F.R. � 1630.2(m). Complainant contends that he �could have continued
to perform other essential factors of his position, or could have been
situated in another station or temporary job position until his periodic
debilitation lessened.� Complainant's Brief in Support of Appeal, at 14.
Complainant does not contend however, that with or without a reasonable
accommodation, he could perform all of the essential functions of his
Laborer Custodian position.
With respect to whether complainant is a qualified individual with a
disability, the inquiry is not limited to the position actually held
by the employee, but also includes positions that the employee could
have held as a result of job restructuring or reassignment. See Van
Horn v. United States Postal Service, EEOC Appeal No. 01960159 (October
23, 1998). Complainant has an evidentiary burden to establish that it
is more likely than not that there were vacancies during the relevant
time period to which he could have been reassigned.<3> See Barnard
v. United States Postal Service, EEOC Appeal No. 07A10002 (August 2,
2002); see also Hampton v. United States Postal Service, EEOC Appeal
No. 01986308 (August 1, 2002). Clearly, complainant can establish this
by producing evidence of particular vacancies. However, this is not the
only way of meeting complainant's evidentiary burden. In the alternative,
complainant need only show that: (1) he was qualified to perform a job
or jobs which existed at the agency, and (2) that there were trends or
patterns of turnover in the relevant jobs so as to make a vacancy likely
during the time period. Id.
To survive the issuance of a decision without a hearing, complainant must
set forth sufficient evidence from which a reasonable fact finder could
conclude that there was a vacant, funded position at the agency at the
relevant time, with essential functions that complainant could perform.
The record is devoid of evidence that complainant was qualified to
perform any job which existed at the agency, and that there were trends
or patterns of turnover so as to make a vacancy likely during the time
period. In sum, although complainant was given several opportunities to
do so, he failed to offer evidence sufficient to establish that there
was a genuine issue of material fact in dispute or that the holding of
a hearing was necessary for the further development of the record.
To the extent that issue (2) constitutes a disparate treatment claim,
we find that complainant has not established that the challenged action
was taken due to management's discriminatory animus against him due to
his membership in a protected group. In so finding, we note that the
evidence of record indicates that between May 1998 and December 1999,
three Caucasian individuals also had their requests for light duty denied,
with the same reason �doctor's limitations and needs of service� given
by P1. ROI, Ex. 31-35.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine dispute
of material fact exists. We find that the AJ's decision referenced the
appropriate regulations, policies, and laws. Further, construing the
evidence to be most favorable to complainant, we note that complainant
failed to present evidence that the agency's actions were motivated
discriminatory animus toward his protected classes. Therefore, we AFFIRM
the agency's final order.
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
August 21, 2003
__________________
Date
1 Specifically, on November 1, 1999, complainant submitted a request for
a light duty assignment. S1 told complainant that there was no light duty
for him, and placed him off-the-clock until his request for light duty had
been reviewed by the Postmaster (P1). On November 5, 1999, P1 denied, in
writing, complainant's light duty request. The reason cited for denying
the request was that it was based on �the Doctor's limitations and the
needs of the Postal Service.� Report of Investigation (ROI), Ex. 29.
2 The medical statement, dated October 28, 1999, indicates that
complainant may return to work, with the restrictions that he could
do no lifting, pushing or pulling over 5 lbs with his left arm, and no
overhead activities. The statement indicates that the conditions will
remain for 3 to 6 weeks. See ROI, Ex. 29, p. 101.
3 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, No. 915.002, at Questions
25-31 (rev. Oct. 17, 2002). These documents are available on the EEOC's
website at www.eeoc.gov.