U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bruce P.1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120130142 Hearing No. 550-2012-00173X Agency No. 1F941006311 DECISION On October 2, 2012, Complainant filed a timely appeal from the Agency's September 20, 2012, final order (FAD) 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. BACKGROUND At the time of the events at issue, Complainant worked as a Mail Processing Clerk (GS-06) at the Processing and Distribution Center facility in San Francisco, California. Complainant sustained a work-related injury to his foot, and was impaired as a result from June 4, 2011 until November 2, 2011. AJ Decision, p. 6. Complainant did not inform management of the work place accident causing his injury until five days later on June 9, 2011. AJ Decision, p. 6. Following a medical examination, Complainant was released to return to work on June 12, 2011 with restrictions on lifting, standing and sitting. Id. At that time, Complainant was initially accommodated by the Agency in being given work which was done in large part while seated. AJ Decision, p. 7. Following a series of modifications to his medical restrictions by Complainant's doctor, the Agency concluded that it could not accommodate Complainant's "zero walking" restriction. Id. Complainant's doctor modified the restriction to ten minutes of walking per hour. However, Complainant's foot was subsequently immobilized in a cast, thereby precluding him from being on the workroom floor. AJ Decision, p. 8. The Agency disallowed Complainant to remain on the workroom floor with his cast based on the idea he could further injure himself. ROI, p. 22. Complainant's cast was removed and he sought to return to work. However, the Agency informed him that there was no work available within his medical restrictions which limited him to no walking. Id. On September 21, 2011, Complainant's restrictions were revised to walking no more than 10 minutes per hour, which remained in place until November 2, 2011. AJ Decision, p. 8. Throughout this period, the Agency took the position that there was no work available within Complainant's medical restrictions, even though a job search was allegedly done within a 50-mile radius. AJ Decision, p. 8. Complainant received workers' compensation payments for his time away from work between August 13, 2011 through November 2, 2011. Id. Complainant returned to work on November 3, 2011 with no restrictions. Id. On October 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (foot injury) when: 1. on June 29, 2011, Complainant was issued a Letter of Warning for unacceptable job performance based on his failure to timely report an accident which occurred on the job; 2. on or around July 26, 2011, Complainant's supervisor threatened that he could no longer accommodate Complainant's medical restrictions and Complainant was forced to change his restrictions; 3. on or around July 26, 2011, Complainant's supervisor made unwanted comments including: "You are taking somebody else's job" and "How can you go to the bathroom and you cannot walk to work;" and 4. beginning on or about July 26, 2011, Complainant was denied work on several occasions. At the conclusion of an investigation into the allegations, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's July 2, 2012 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on September 5, 2012. The Agency subsequently issued a FAD adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to the alleged discrimination. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS An AJ may issue a decision without a hearing, summary judgment, when he or she finds that there are no genuine issues of material fact. 29 C.F.R. § 1614.109(g); Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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. Anderson, 477 U.S. at 248. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Anderson, 477 U.S. at 255. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Harassment of an employee that would not occur but for the employee's disability is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing, McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). A single incident or group of isolated incidents will usually not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability;2 (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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(c) and (p). "The term 'qualified,' with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2(m). While an employer is not required to create a job for a disabled employee, a reasonable accommodation may include reassignment to a vacant position or modification of procedures and policies. 29 C.F.R. § 1630.2(o)(2)(ii); accord, Brooks v. U.S. Postal Serv. Request No. 05990023 (Feb. 21, 2002) (citing, Ignacio v. United States Postal Service, EEOC Petition No. 03840005 (September 4, 1984) , aff'd, 30 M.S.P.R. 471 (Spec. Pan. February 27, 1986)). The AJ concluded that Complainant was not subjected to harassment based on his disability due to the reasons offered by the Agency. First, the AJ concluded that Complainant failed to report his accident in a timely fashion. Next, the AJ concluded that Complainant was asked about what the meaning of zero minutes of walking per hour meant because his supervisor legitimately needed clarification. Third, the AJ concluded that: Complainant was denied work on several occasions because he was limited to zero walking; his foot was immobilized in a cast at one point which meant that he could not be on the workroom floor according to Agency rules; and that at the point when he was limited to 10 minutes walking per hour, a job search was conducted within a 50 mile radius but there was no available work. The AJ's decision to issue a decision without a hearing was not appropriate in this case because the record was not adequately developed. Specifically, the AJ only analyzed Complainant's complaint as raising a claim of disability-based harassment, and failed to consider his reasonable accommodation claim. The record contains explicit statements from Complainant that he sought an accommodation for his disability (see Formal Complaint, ROI, p. 42; see also, ROI, p. 16), but there is no evidence in the record that the Agency engaged in the interactive process to explore ways to accommodate Complainant. The record is unclear why management did not refer Complainant through proper channels (to its District Reasonable Accommodation Committee) to consider his accommodation requests. The first course of action should have been to examine whether Complainant could have been accommodated within his own position, a step that the Agency did briefly take when Complainant was initially allowed to sit and case mail in the letter alley, but later rescinded. In addition, after Complainant returned from wearing a cast and asked to be accommodated again with a 10-minute walking restriction, his manager denied this on the basis that no work was available within 50 miles. Complainant asserts there was work available, while the Agency denies the same. No records of whether a job search was actually done appear in the record. Further, since Complainant was previously accommodated in his own work location, it is unclear what happened to that work. These critical evidentiary gaps need to be resolved at a hearing where the veracity of both parties' claims can be more properly weighed. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD, implementing the AJ's finding that Complainant was not subjected to harassment because of his disability is VACATED, and the complaint is REMANDED for hearing in accordance with this decision and the Order below. ORDER The agency shall submit to the Hearings Unit of the appropriate EEOC field office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. 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 AJ shall process 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ________________________ Carlton M. Hadden, Director Office of Federal Operations 12-11-2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 This case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Because this matter occurred in 2011, the Commission will use the analytical framework as it exists pursuant to the ADAAA. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2013-0142 2 0120130142