0120081202
06-09-2011
Rameses B. Akbar, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Rameses B. Akbar, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120081202
Hearing No. 410-2007-00360X
Agency No. 1H-302-0021-07
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s December 6, 2007 final order concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Handler Equipment Operator at the Agency’s Processing
and Distribution Center in North Metro, Georgia. On April 23, 2007,
Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability and in reprisal for prior protected
EEO activity when, since late January 2007 and continuing, he was not
accommodated with a limited duty assignment and not returned to work.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant’s objections,
the AJ granted the Agency’s motion and issued a decision without a
hearing on November 29, 2007.
In her decision, the AJ initially determined that Complainant had not
established a prima facie case of discrimination. Nonetheless, the
AJ found that the Agency had articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, all employees on limited duty are
required to provide medical documentation supporting their condition on
a periodic basis and Complainant failed to do so. Complainant stated
that in 2004 and 2006, the Agency requested that he provide medical
documentation to update his medical condition and Complainant acknowledged
that he has not done so. Complainant’s rationale for not providing
the required documentation was that someone at the Department of Labor
told him that it was the duty of the Agency to schedule an appointment
for Complainant and/or that any such appointment had to be pre-approved
by the Department of Labor. Complainant presented no evidence in support
of his contention. In the absence of current medical documentation, the
Agency removed Complainant from active payroll status on August 17, 2006.
On January 4, 2007, the Agency again requested medical documentation.
This letter noted that Complainant was still in workers’ compensation
status and informed Complainant that he did not need authorization to see
his treating physician to obtain current medical information. The letter
further gave instructions from the Department of Labor regarding whether
the treating physician needed confirmation of the authorization for
the visit. Complainant failed to provide the requested documentation,
again reciting the Agency's obligation to schedule his appointment.
Finally, as to Complainant’s reasonable accommodation claim, the
AJ concluded that the Agency had provided Complainant a limited duty
assignment since 1998. The AJ found that there was no evidence that
the Agency was going to discontinue the limited duty assignment as
long as Complainant provided documentation that he was eligible for it.
Only when Complainant failed to provide the documentation did the Agency
act accordingly. The AJ found that Complainant presented no evidence
rebutting the Agency’s reasons as pretextual. Accordingly, the AJ
concluded that the Agency had not discriminated against Complainant nor
denied him reasonable accommodation.
Complainant submitted no contentions in support of his appeal. The Agency
requests that the Commission affirm the final order.
ANALYSIS AND FINDINGS
Decision without a Hearing
The Commission must first determine whether it was appropriate for
the AJ to have issued a decision without a hearing on this record.
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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to
a motion for a decision without a hearing).
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. Dep’t of Justice, EEOC Request No. 05940339 (Feb. 24, 1995).
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which required
a hearing and therefore the AJ’s issuance of a decision without a
hearing was appropriate. The Commission concludes that, even assuming
all facts in favor of Complainant, a reasonable fact finder could not
find in his favor, as explained below. Therefore, no genuine issues of
material fact exist. Under these circumstances, the Commission finds
that the AJ's issuance of a decision without a hearing was appropriate.
Denial of Reasonable Accommodation
The Commission notes that the Rehabilitation Act of 1973 prohibits
discrimination against qualified disabled individuals. See 29 C.F.R. §
1630. In order to establish that Complainant was denied a reasonable
accommodation, Complainant must show that: (1) she is an individual with a
disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified
individual with a disability pursuant to 29 C.F. R. § 1630.2(m); and
(3) the Agency failed to provide a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002).
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. See 29 C.F.R. §§ 1630.2(c)
and (p). For purposes of analysis, the Commission shall assume, without
so finding, that Complainant is a qualified individual with a disability.
Upon review of this matter, the Commission concludes that Complainant has
failed to prove that he was denied a reasonable accommodation in violation
of the Rehabilitation Act. Further, the Agency's requests for updated
medical documentation were appropriate under the Rehabilitation Act
and were not made in order to harass Complainant. The record indicates
that Complainant’s most recent medical documentation on file was dated
November 28, 2001. ROI, at 88. Complainant refused to provide updated
medical documentation and consequently, was placed in off-duty status.
Complainant’s manager (M1) affirmed that the Agency was unable to
determine if Complainant would need additional accommodations or whether
he could return to full duty without the updated medical documentation.
Id. at 77. The Agency needed updated medical documentation to evaluate
Complainant’s requested accommodation in light of his medical needs
so that it could determine what accommodation would best serve the needs
of the Agency and Complainant. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC No. 915.002, Question 6 (as revised Oct. 17, 2002). It is clear
that the Agency sought to engage Complainant in the interactive process,
but Complainant failed to participate. Therefore, the Commission finds
that Complainant has not demonstrated that he was denied a reasonable
accommodation.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 9, 2011
Date
2
0120081202
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120081202