0120082306
06-21-2012
Teresa H. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Teresa H. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120082306
Hearing No. 531-2007-00220X
Agency No. 4K-2000-023-07
DECISION
On April 17, 2008, Complainant filed an appeal from the Agency's March 21, 2008 final order concerning her equal employment opportunity (EEO) complaint alleging 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(a). For the following reasons, the Commission VACATES the Agency's final order and REMANDS the complaint for a supplemental investigation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales and Service Distribution Associate at the Agency's Bethesda Annex, located in Bethesda, Maryland. On February 20, 2007, Complainant filed an EEO complaint alleging that she was discriminated against on the bases of disability (plantar fasciitis) and in reprisal for prior protected EEO activity when on October 27, 2006, she was not awarded bid job assignment #03-219, Sales and Service Distribution Associate, due to her medical restrictions.
At the conclusion of the investigation, Complainant was provided with a copy of the Report of Investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On December 5, 2007, the Agency submitted a motion for a decision without a hearing. Complainant did not object to the Agency's motion. The AJ assigned to the case granted the Agency's motion and issued a decision without a hearing on March 12, 2008.
Complainant held a Modified Sales and Service Distribution Associate position. Complainant submitted a CA-17 outlining her restrictions due to plantar faciitis. She was permitted to carry a maximum of 40 pounds and she could stand and walk intermittently for three hours a day. The Manager, Customer Services of Bethesda Annex (Manager), and the Postmaster of Bethesda (PM), were her first-line supervisors. In a settlement agreement dated August 23, 2006, the Agency agreed to accommodate Complainant by allowing her to work the afternoon shift in a chair.
Two months later, Complainant submitted a bid on another assignment. This assignment, according to management, did not meet with her medical restrictions because she would not have been allowed to use a chair. The bid position, #03-219, had daytime hours, and the Agency maintained that the use of a chair would interfere with its operations. The Agency noted that there were other daytime assignments available that would have allowed Complainant to use a chair, but not the bid position that is at issue here. In November 2006, Complainant accepted a Modified Sales and Service Distribution Associate position with hours of 10:00 AM to 7:00 PM, except on Wednesdays and Sundays; and 8:00 to 4:30 on Saturdays.
The AJ found that Complainant's impairment of plantar faciitis was not sufficiently severe to affect any major life activities. The AJ found that her restrictions, carrying up to 40 pounds and standing and walking up to three hours a day, were not out of the ordinary for the general population. The AJ further found that Complainant failed to offer any medical or other evidence to establish that she was ever substantially limited in any major life activity in the past. Finally, the AJ concluded that Complainant did not offer evidence to show that her supervisors cancelled her bid assignment because they regarded her impairment as substantially limiting her in any major life activity. The AJ found that Complainant's supervisors believed Complainant's medical condition only precluded her from performing the one job upon which she bid. Accordingly, the AJ concluded that Complainant failed to establish that she was an individual with a disability. Because the AJ determined that Complainant failed to demonstrate that she was an individual with a disability, he determined that the Agency was not obligated to accommodate her with the chair she required for the bid position.
The AJ further determined that Complainant established a prima facie case of reprisal, but that the Agency articulated legitimate, nondiscriminatory reasons for not awarding Complainant the bid position. Specifically, Agency officials believed that Complainant was medically precluded from performing the full range of duties of the position due to her medical limitations and allowing her to use a chair during certain times of the day would interfered with office operations. The AJ found that Complainant failed to proffer any evidence to establish that the Agency's reasons were a pretext for retaliation.
The Agency issued a final order adopting the AJ's finding that Complainant failed to prove that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal Complainant argues that she was subjected to disability discrimination and takes issue with the undisputed facts as found by the AJ. She requests that we remand the decision for a hearing.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chapter 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Department of the Army, EEOC Appeal No. 01A04099 (July 11, 2003).
As a threshold matter in a case of disability discrimination under a failure to accommodate theory, Complainant must demonstrate that she is an "individual with a disability." An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). The Commission has defined "substantially limits" as "[u]nable to perform a major life activity that the average person in the general population can perform" or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. � 1630.2(j)(1)(i) and (ii). Factors considered in determining whether an individual is substantially limited in a major life activity include: the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment. 29 C.F.R. � 1630.2(j)(2). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. � 1630.2(f).
The Commission has previously found that an individual with bilateral plantar fasciitis was substantially limited in the major life activity of standing when he was not able to stand more than 4 hours a day. Gluade v, Dep't of Defense, EEOC Appeal No. 01A33351, (Mar. 16, 2006); see also Thompson v. U.S. Postal Serv., EEOC Appeal No. 01951495 (Jun. 25, 1997) (finding that Complainant's plantar fasciitis strain caused a substantial limitation in walking); Smith v. Dep't of Veterans Affairs, EEOC Appeal No. 03900104 (Nov. 16, 1990) (finding that Complainant was an individual with a disability because her plantar fasciitis and callosities caused her to be able to walk or stand only with great difficulty). The Commission has also found that individuals with plantar faciitis were not substantially limited in any major life activities. See Gianikos v. U.S. Postal Serv., EEOC Appeal No. 01A21992 (Oct. 16, 2003) (finding that Complainant's plantar fasciitis did not render her disabled because the impairment was temporary and fully resolved with no residual restrictions); Villias v. U.S. Postal Serv., EEOC Appeal No. 01964394 (July 15, 1998) (finding that Complainant's plantar fasciitis was temporary and did not render her disabled because the impairment did not substantial limit her ability to walk).
Here, we do not find that the record has been sufficiently developed to make a factual determination on the issue of whether Complainant is an individual with a disability. Specifically, the record contains Complainant's Duty Status Report dated July 1, 2003, that indicated that she was restricted in walking more than four hours a day and standing four hours a day. The record also contains Complainant's Duty Status Report dated November 16, 2006, that indicated that she was restricted in walking more than three hours a day and standing three hours a day. Additionally, the record contains an undated letter from Complainant's physician detailing her treatment including medication, therapy, and the nature of her impairment. We note, however, the copy contained in the record before the Commission is, largely, illegible. The record also contains Complainant's affidavit, however, her responses regarding the nature of her impairment and limitations on her major life activities are for the most part uninformative.
In Gluade, the record contained information regarding the history of the complainant's treatment and the nature and severity of his plantar faciitis. This included doctors' notes requesting the complainant to work while sitting and reports from treating medical professionals describing the impairment. Here, we find that this type of documentary evidence either missing or not legible. As noted, the medical evidence contained in the record, as it currently stands, does not contain sufficient evidence to make a factual determination, one way or the other, regarding the nature or severity of Complainant's condition as it existed in October 2006.
There is no question but that a Complainant bears the burden of proof in demonstrating that they are substantially limited in a major life activity because of an impairment. Sweeny v. U.S. Postal Serv., EEOC Appeal No. 0120060418 (September 17, 2007); see Murphy v. United Parcel Service, 527 U.S. 516, 521-523 (1999). On the other hand, the Agency is charged with the obligation to develop an adequate investigative record. Specifically, the requirement that an Agency investigate complaints of discrimination is codified at 29 C.F.R. � 1614.108. The Agency has a duty to develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. Id. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. 29 C.F.R. � 1614.108(a). The investigator is required to conduct a thorough investigation--identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome. EEOC Management Directive (MD)-110, p. 6-8 (Nov. 9, 1999). Therefore, an investigator must exhaust those sources of information likely to support the positions of Complainant and the Agency. Id.
In particular, in investigating a claim of disability discrimination, the Agency must ensure that the investigator "asks the right questions" of Complainant, ones designed to elicit pertinent evidence on the threshold issues of: whether Complainant has an impairment; whether it affects a major life activity; and whether it substantially limits a major life activity. Sweeney.1 We find in this case, the Agency failed to do so.
CONCLUSION
Here, for the reasons set forth above, we find that the Agency failed to develop an adequate evidentiary record because it contains insufficient information upon which to determine whether Complainant is substantially limited in a major life activity because of her plantar faciitis. Accordingly, we VACATE the Agency's final order and REMAND the complaint back to the Agency to undertake a supplemental investigation as set forth below.2
ORDER
The Agency is ORDERED to take the following action:
1. Within sixty (60) calendar days of the date that this decision becomes final, the Agency shall undertake and complete a supplemental investigation of this complaint, by obtaining detailed affidavits and relevant documentation on the following as it existed on or about October 27, 2006, the date of the discriminatory incident at issue:
(A). The extent of Complainant's limitations, problems, or restrictions in the major life activities of walking and standing that resulted from her plantar fasciitis. The Agency shall assess all information obtained to determine whether Complainant is substantially limited in the major life activities of standing or walking.
(B). The Agency is directed to ask Complainant to produce or provide access to evidence in support of her contentions regarding her plantar fasciitis and its impact on her major life activities. That evidence may include documentary evidence, such as doctor's notes or medical records, or potential witnesses to contact, such as medical personnel, family members, friends, or co-workers.
(C). The Agency shall instruct the investigator to compile the above information into an investigative report, and transmit it to the Agency within sixty (60) days of the date that this decision becomes final. No later than thirty (30) days after receiving the report, the Agency will insure that the Complainant is in receipt of a copy of the report, and also provide a copy to the Compliance Officer referenced below. Upon completion of the investigative report and receipt by Complainant, the Agency shall again provide Complainant with the opportunity to request a hearing before an Administrative Judge or have the Agency issue a final decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (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 (November 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 (R0610)
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 (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
__6/21/12_______________
Date
1 See also, Goldberg v. U.S. Postal Serv., EEOC Appeal No. 0120052273 (Aug. 15, 2008).
2 Because of our decision with respect to Complainant's disability claim, we will defer making a determination regarding her claim of reprisal discrimination at this time.
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0120082306
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082306