Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120120665 Hearing No. 520-2010-00368X Agency No. 1B-024-0002-10 DECISION Complainant timely filed an appeal from the Agency's 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, PS-06, at the Agency's Processing and Distribution Center (P&DC) in Brocton, Massachusetts. Report of Investigation (ROI), at 54. Complainant suffers from the loss of his left arm, which occurred in an industrial accident prior to his employment with the Agency. Complainant's Response to the AJ's Notice of Intent to Issue a Decision without a Hearing (Complainant's Response), at 1. As a result, Complainant wears a prosthetic left arm with a hook. ROI, at 90. Complainant also suffers from epilepsy, which according to Complainant, is well controlled with episodes occurring very infrequently. Complainant, however, is unable to drive a car and has only been working six hours per day due to the epilepsy. Id. at 54. Because of his conditions, Complainant's medical restrictions were as follows: May work up to 8 hours per day. Requires a straight back chair with arm rests and no wheels for safety when seated. May lift up to 20 pounds up to 2 hours per day. May perform 5 hours of walking per day. May perform 4 hours of standing per day. No bending, squatting, climbing, kneeling, or twisting. No reaching above shoulder level with left side. Id. at 98. Complainant, however, disagreed with his restrictions pertaining to bending, squatting, climbing, kneeling, and twisting. Id. at 85. On October 15, 2009, Complainant received a letter informing him that his position and several others were going to be impacted by a reorganization within the Brocton P&DC. Id. at 37. Thereafter, on November 5, 2009, Complainant submitted a bid for the position of General Expeditor, PS-06. The position description for the Expeditor position described its functional purpose: [The Expeditor] arranges for the proper transfer of mail which may require the knowledge of incoming and/or outgoing schemes, transportation schedules, and receipt and dispatch information in performing mail distribution between highway contract routes, mail messengers and truck routes, and other mail units; and the separating, loading, and unloading of railway storage cars, flexi-vans and piggy-back trailers, by contractors and postal employees to ensure proper and expeditious handling. Id. at 110. The Manager of In-Plant Support denied Complainant's bid, and instead awarded the Expeditor position to two younger employees with less seniority. Id. at 78. The Manager felt that the safety of Complainant as well as other employees would be at risk if Complainant was awarded the Expeditor position. Id. at 79. The Manager pointed to Complainant's medical conditions and his history of epileptic seizures in denying him the bid. Id. The Manager indicated that Complainant's prosthetic arm "could hinder his ability to open tractor trailer doors, move containers of mail and operate a scanner . . . ." Id. at 80. The Manager thereafter referred Complainant to the District Reasonable Accommodation Committee (DRAC) to determine if he could work in a less-strenuous position. Id. The Supervisor of Distribution Operations also believed that Complainant could not physically perform the duties of the Expeditor position. The Supervisor observed that Complainant had trouble bending at the knees when performing his manual clerk position. Id. at 91. The Supervisor mentioned that an Expeditor "must hold a scanner in one hand, and input information into the scanner with the other hand, he must also kneel down and cut the seal and open the back doors of the truck by rolling the large, heavy doors over their heads, using both arms." Id. The Supervisor did not believe that Complainant could perform these physical duties. However, according to Complainant, he previously performed the Expeditor position without an accommodation where he lifted 10 to 20 pounds on a regular basis without any difficulty. Complainant's Response, at 2. Complainant stated that his last epileptic episode was four years ago, and that he had no issues when he previously worked as an Expeditor. Id. Complainant stated that the Agency neither asked him to submit for a Fitness for Duty examination nor requested his doctor's opinion in its determination that he could not perform the Expeditor position safely. Id. Complainant stated his belief that that he could perform the duties of the Expeditor position because he performed them previously. Id. On November 5, 2009, Complainant contacted an EEO Counselor and filed a formal EEO complaint on February 6, 2010, alleging that the Agency discriminated against him on the bases of disability and age (59) when he was not awarded a bid to work as an Expeditor. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an AJ. The AJ subsequently issued a notice of intent to issue a decision without a hearing, and both the Agency and Complainant responded. After considering the parties' responses, the AJ issued a decision without a hearing on September 29, 2011, finding no discrimination in the Agency's favor. Specifically, the AJ noted that Complainant failed to establish a prima facie case of discrimination based on the denial of reasonable accommodation. The AJ noted that Complainant said that he did not need accommodation for the Expeditor position, and that the gravamen of his argument was that the Manager referred him to DRAC, which masked the Agency's intention to deny him his bid. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons, which Complainant failed to establish were pretext for discrimination. The AJ mentioned that Complainant neither challenged the duties of the Expeditor position nor established that he could perform the work safely within his restrictions. The AJ pointed out that the Supervisor, who observed Complainant every day, confirmed the Manager's belief that Complainant could not physically perform the duties of the Expeditor position safely. The AJ therefore issued judgment in favor of the Agency. The Agency thereafter issued its final action, which implemented the AJ's decision. CONTENTIONS ON APPEAL Complainant did not file a brief or statement on appeal. The Agency requests that we affirm its final action. 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 EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, § VI.B. (Nov. 9, 1999) (both an administrative judge's decision to issue a decision without a hearing and the decision on the merits of the complaint 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 Chap. 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"). ANALYSIS AND FINDINGS AJ's issuance of a Decision without a Hearing 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). "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." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 059:50628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 2.5, 1995). 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 EEO MD-110, at Ch. 7, § 1.; see also 29 C.F.R. § 1614.109(e). In the instant case, although there is no dispute that Complainant is disabled, we find that the AJ erred in failing to address whether Complainant is a "qualified" individual with a disability and, if so, whether Complainant posed a direct threat to himself or other employees. We find that whether Complainant was qualified for the Expeditor position and whether he would pose a direct threat if placed in that position to be genuine issues of material fact in dispute. As such, we find that the AJ improperly issued a decision without a hearing as explained below. Qualified In order for Complainant to prevail on his disability claim, he must demonstrate the following three elements: 1) that he is an "individual with a disability" as defined in 29 C.F.R. § 1630.2(g);1 2) that he is a "qualified" individual with a disability as defined in 29 C.F.R. § 1630.2(m); and (3) that he was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination and/or denied an accommodation. We note that, when determining whether or not an individual is qualified, EEOC regulations require that the Agency consider whether the individual can perform the essential functions "with or without reasonable accommodation." 29 C.F.R. 1630.2(m). Here, we find that whether Complainant could perform the essential functions of the Expeditor position presents a genuine issue of material fact in this case. We find that Complainant's statements conflict with management's assertions that he could not physically perform the Expeditor position. In so finding, we note that, although management believed that Complainant could not physically perform the position, Complainant indicated that he had performed the Expeditor position previously, without accommodation. Other than Complainant's statement, there is no other testimony or evidence indicating to what extent he previously performed the Expeditor position, whether he would require accommodation, or whether he could have been accommodated in this position. The Supervisor believed that Complainant's prosthetic arm and his difficulty kneeling impacted his ability to perform the Expeditor position. ROI, at 91. However, Complainant has stated that he can perform the duties of the position with one arm, and disagreed with his restrictions pertaining to no bending, squatting, climbing, kneeling, or twisting. Id., at 55, 85. The Expeditor position description is not clear as to the actual physical requirements for the position. We find that the record needs to be further developed and clarified as to what the essential functions of the Expeditor position are, and whether Complainant is capable of performing such functions with or without accommodation. See Mason v. Dep't of the Navy, EEOC Appeal No. 01A30377 (Jan. 28, 2005) (AJ erred issuing decision without a hearing, failing to take into account statements by complainant, who had limited use of right arm, that she could perform essential functions of position with left arm). Direct Threat Next, if Complainant is a qualified individual with a disability, there remains an additional genuine issue of material fact in dispute concerning whether the Agency conducted an individualized assessment and/or can establish that Complainant was a direct threat, when it denied him the Expeditor position. Our regulations permit the agency to deny job assignments on the basis of disability where such an assignment would pose a direct threat to the health or safety of the individual or others. See 29 C.F.R. § 1630.2(r). A "direct threat" is defined as a "significant risk of substantial harm." Id. The issue in finding direct threat is "not . . . whether a risk exists, but whether it is significant." Bragdon v. Abbott, 524 U.S. 624, 649 (1998). A direct threat must be based on an individualized assessment of the individual that takes into account: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r); Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002); Cook v. State of Rhode Island, Dep't of Mental Health Retardation and Hospitals, 10 F.3d 17 (1st Cir. 1993). The individual assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. Id. A determination of significant risk cannot be based merely on an employer's subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports. Rather, the Agency must gather information and base its decision on substantial information regarding the individual's work and medical history. Chevron U.S.A. Inc. v. Echazabal, supra; Harrison v. Dep't of Justice, EEOC Appeal No. 01A03948 (July 30, 2003). In the instant case, the Manager of In-Plant Support denied Complainant the Expeditor position, feeling the safety of Complainant as well as other employees would be at risk. ROI, 79-80. The Manager pointed to Complainant's medical conditions and his history of epileptic seizures in denying him the bid. Id. However, we note that Complainant stated that his epilepsy is well-controlled on medication and that his last epileptic episode was four years prior. Complainant's Response, at 2. We note that there is no evidence in the record that Complainant experienced an episode while on duty, which would have substantiated the Manager's concern. Further, with respect to the individualized assessment required from the Agency, Complainant maintains that the Agency neither asked him to submit to a Fitness for Duty examination nor requested his doctor's opinion in its determination that he could not perform the Expeditor position safely. Id. It appears that the Manager alone made the subjective determination that Complainant could not safely perform the position. Therefore, we find that this case contains conflicting evidence as to whether the Agency's failure to place Complainant in the Expeditor position constitutes a violation of the Rehabilitation Act. In sum, there are simply too many unresolved issues which require an assessment as to the credibility of the various management officials, co-workers, and Complainant himself. We find that the record is not adequately developed, in that there are disputes of material fact with regard to whether Complainant was "qualified" for the Expeditor position, and if so, whether he would pose a direct threat to himself or others if placed in such position. See Boland v. Dep't of State, EEOC Appeal No. 0120065043 (Sep. 30, 2009) (AJ erred issuing decision without a hearing where genuine issues of material fact existed as to whether complainant was qualified and would pose a direct threat if placed in position sought); Mason, EEOC Appeal No. 01A30377 (genuine issues of material fact existed whether complainant was qualified, and if so, posed a direct threat). As such, we find that a decision on the merits of Complainant's complaint is improper at this juncture. We find the AJ erred in issuing a decision without a hearing. CONCLUSION The Commission VACATES the Agency's final order and REMANDS the matter to the Agency in accordance with this decision and the ORDER below. ORDER 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 hold a hearing and 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 (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 December 4, 2014 Date 1 The Agency does not contest that Complainant is an individual with a disability. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120120665 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013