Timothy W. Schulz,
Complainant,

v. 

John E. Potter,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120073186

Agency No. 4G-720-0400-06

Hearing No. 490-2006-00197X


DECISION

On July 8, 2007, complainant filed an appeal from the agency's June 7,
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.  The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. § 1614.405(a).  

During the period at issue, complainant worked as a Building Maintenance
Custodian at the Harvey Jones Postal Office in Springdale, Arkansas.  

On February 10, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of disability1 (sinusitis,
shoulder, and chronic mood disorder).

By letter dated February 17, 2006, the agency accepted complainant's
formal complaint for investigation and determined that complainant's
complaint was comprised of the following claim: 

On or about December 20, 2005, [complainant] was denied [a] reasonable
accommodation.

At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ).  Complainant timely
requested a hearing.  The AJ assigned to the case determined sua
sponte that the complaint did not warrant a hearing. Over complainant's
objections, the AJ issued a decision without a hearing on May 25, 2007.
The agency subsequently issued a final order dated June 7, 2007, adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged.

The AJ found that even assuming arguendo that complainant was a qualified
person with a disability, the agency satisfied its obligation under
the law by providing an effective accommodation.  Specifically, the AJ
stated that "the evidence shows that while a respirator may be preferable,
a dust mask is an effective accommodation."

On appeal, complainant asserts that the AJ's decision without a hearing
is improper.  Complainant states that "the agency chose to provide only
a dust mask which...only provides minimal protection against pollutants
[complainant] encounters on a daily basis."  Complainant further
asserts that another named agency employee was allowed to wear a
mechanical-filtered respirator.

In response, the agency requests that we affirm its final order.
The agency states that it has dust masks at the facility in question
that are available to all employees, including complainant.  The agency
further asserts that "[complainant's] physician never specified that
[complainant] was to wear a particular type of mask or respirator.
Instead the physician's comments are written in guarded vague language."

We 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.  
Upon review of the record, we find that the AJ properly issued a decision
without a hearing in this matter because there is no genuine issue of
material fact.  

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 undue hardship. 29 C.F.R. §§ 1630.2(o) and (p).
The agency may choose among reasonable accommodations as long as the
chosen accommodation is effective.  An "effective" accommodation either
removes a workplace barrier, thereby providing an individual with an equal
opportunity to apply for a position, to perform the essential functions
of a position, or to gain equal access to a benefit or privilege of
employment.  See EEOC's Enforcement Guidance on Reasonable Accommodation
and Undue Hardship (revised October 17, 2002) at question 9.  If more
than one accommodation is effective, "the preference of the individual
with the disability should be given primary consideration.  However,
the employer providing the accommodation has the ultimate discretion to
choose between effective accommodations."  Id.

The record contains several statements from physicians regarding
complainant's medical condition and restrictions.  The record contains
a letter from one of complainant's physicians dated November 29, 2005.
Therein, the physician states, in pertinent part, that "[d]ue to his
significant problems with sinusitis and his other allergy symptoms,
it is certainly prudent at this point to have [complainant] wear some
type of filtering device over his nose when he is working in a dusty
or allergy-prone environment.  While a paper mask would provide some
protection;...a respirator would probably be a better solution..."
The record also contains another letter from another physician dated
December 12, 2005.  Therein, the physician states, in pertinent part, that
"[b]ecause of his continued intermittent symptoms and his predisposition
for problems, he needs a respirator type of mask for his sinus problems."
Finally, the record contains a Duty Status Report (CA-17) dated January
12, 2006, completed by one of complainant's physicians.  Therein, the
physician provided that complainant should "use [a] dust mask."

Assuming arguendo that complainant was a qualified individual with a
disability, we find that the agency fulfilled its obligation under the
Rehabilitation Act by allowing complainant to wear a dust mask.  While
complainant wanted the agency to allow him to use a mechanical-filtered
respirator, the physicians' statements referenced above merely provide
that complainant wear "some type of filtering device over his nose."
In addition, the Duty Status Report dated January 12, 2006, merely
provides that complainant should "use [a] dust mask."  In his deposition,
complainant acknowledged that that were dust masks available at his
facility and that he was never told that he could not wear a dust mask.
Complainant's Deposition at 48.  

Accordingly, we AFFIRM the agency's final order implementing the AJ's
decision finding no discrimination.


 
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


January 15, 2008
Date



1 For purposes of analysis only, we assume, without finding, that
complainant is an individual with a disability.  
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0120073186






U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C.  20036





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