Nickie J. Keene v. United States Postal Service
01A04830
January 24, 2002
.


Nickie J. Keene,
Complainant,

v.

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

Appeal No. 01A04830

Agency No. 1D-271-0059-97

Hearing No. 140-98-8186X

DECISION

INTRODUCTION

Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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., 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 appeal is accepted
pursuant to 29 C.F.R. § 1614.405.

ISSUE PRESENTED

The issue presented is whether the AJ's finding of no discrimination
was appropriate.

BACKGROUND

The record indicates that complainant is a Mail Processor at the agency's
Processing Distribution Center in Greensboro, North Carolina.  Believing
he was the victim of discrimination, he filed a formal EEO complaint on
August 22, 1997, alleging that the agency had discriminated against him
on the bases of race (Caucasian), sex (male), disability (sleep apnea,
high blood pressure, tinnitis, dislocated right shoulder, and anxiety),
and age (D.O.B. October 12, 1949) when:

 On April 17, 1997, after speaking to the Manager Distribution Operations
 (MDO) regarding harassment, the harassment worsened;
 On April 23-26, 1997, Supervisor 1 yelled at the complainant on the
 workroom floor, refused to give him extra help, did not assign him
 to work in his bid position, and told him that he would have to work
 overtime; and

 On April 26, 1997, Supervisor 2 took complainant to a huddle of managers
 and attempted to get him to sign a light duty assignment.

At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ).  At the hearing, complainant testified along with several
witnesses he called on his behalf.  The agency presented only one witness.
After the hearing, the agency filed a motion for summary judgment based on
complainant's failed to establish his prima facie cases of discrimination.

The AJ determined that summary judgment was appropriate in the case
at hand and issued her decision finding no discrimination.  To the
extent complainant alleged disparate treatment, the AJ concluded that
complainant failed to establish a prima facie case of discrimination based
on race, sex or age.  Specifically, the AJ found that complainant failed
to demonstrate that similarly situated employees not in complainant's
protected classes were treated differently.  Further, the AJ determined
that complainant did not proffer any evidence to support an inference
of discrimination based on his race, sex, or age.  As to his claim of
harassment, the AJ found that complainant failed to establish that he
was subjected to a hostile work environment.  In fact, the AJ noted
that complainant's testimony indicated that there were personality
conflicts between him and management.  He therefore concluded that
complainant failed to show that the "uncomfortable working conditions"
was discrimination.

As to complainant's claim of discrimination based on his disability, the
AJ found that complainant failed to establish that he is covered under
the Rehabilitation Act.  Although complainant listed several impairments,
the AJ found that complainant primarily based his disability claim on
sleep apnea.  Complainant provided documentation which indicated that
his sleep apnea interferes with his ability to have adequate sleep.
The AJ determined, based on the lack of information regarding the nature
and severity of the impairment, that complainant failed to provide
any evidence that the sleep apnea substantially limited him in a major
life activity.

The agency's final order implemented the AJ's decision.  On appeal,
complainant restates arguments previously made at the hearing.
In particular, he claims that his impairment impacts him in walking,
breathing, seeing, and hearing.  Further, he argues that the agency's
actions were due to retaliation.  Finally, complainant contends that
the AJ acted improperly during the hearing process.  The agency did not
respond to the instant appeal.

ANALYSIS AND FINDINGS

Contentions on Appeal

Complainant contends that the AJ acted in an inappropriate manner during
the hearing process.  He claimed that the AJ demonstrated a bias in favor
of the agency and the agency's representative in the manner she conducted
the hearing.  This contention is separate from the issuance of summary
judgment by the AJ.  The Commission has thoroughly reviewed the hearing
transcripts and we find no such bias.  We note that EEOC regulations and
Commission precedent provide AJ's with broad discretion in the conduct of
a hearing.  See 29 C.F.R. § 1614.109; see also EEOC Management Directive
110 (MD-110), Chapter 7, at 9-10 (1999).  The Commission finds that the
AJ did not abuse her discretion nor did she show any partiality toward
the agency.

Complainant also claims that the AJ wanted to continue the hearing without
a lunch break.  Complainant contends that this was another example of
her bias in favor of the agency.  He noted that his representative and
an agency witness were diabetic and needed at least fifteen minutes
to get to an eatery near the hearing location.  He alleged that the
AJ only permitted twenty minutes for lunch which was insufficient for
his representative to get an "adequate meal" and return to the hearing
location.  The Commission has reviewed the record regarding this incident
and finds no evidence to suggest that the AJ's break arrangement was
problematic for complainant's representative or the agency's witness.
Furthermore, we note that the record does not support complainant's
contention that the AJ's alleged action was due to a bias in favor of
the agency.<1>

In addition, complainant raises a concern with the discovery process.
He states that he provided the agency with his discovery request and
that the AJ failed to take action against the agency to compel discovery.
On appeal, complainant does not indicate what he wished to discover nor
how it was relevant to the case at hand.  The Commission surmises from
the record that complainant was seeking evidence that was contained in a
grievance package held at the Union Office.  Complainant's representative
located the package on his own and attempted to introduce it into
evidence at the hearing.  The representative argued that the package
would establish that complainant was singled out as compared to other
collective bargaining employees because of his union activity.  The AJ
did not accept the package into evidence stating that its relevance
had not been established.  The AJ also noted that the representative
had complainant's union representative on the stand and could ask
her questions about the grievance matter.  Upon review, we find that
complainant failed to show that the documents requested were relevant
to this EEO complaint or that he was harmed by the AJ's failure to take
action to compel discovery of the package.

Finally, complainant notes that on the first day of the hearing, the
agency did not have "an important witness" available.  He argues that
the agency claimed that the witness was no longer an employee which he
states was a lie.  The record reveals that the agency was on notice to
have complainant's witness, a co-worker, available for the hearing.
The agency representative initially stated that the co-worker was no
longer with the agency.  The representative later corrected himself and
informed the AJ and complainant that the co-worker was on maternity leave.
The record indicates that both parties attempted to contact the co-worker
to no avail.

The Commission finds that the agency should have provided such information
regarding the availability of a witness prior to the first day of
the hearing.  The agency is responsible for ensuring that all approved
witnesses who are federal employees are notified of the date and time
of the hearing.  MD-110, at 7-3.  Clearly the agency should have been
aware that the witness was going to be out on maternity leave prior to
the hearing.  Had the agency raised the matter to the AJ and complainant,
the AJ could have ordered the agency to take steps to obtain testimony
from the witness in the form of an affidavit or interrogatory.  We note
that the AJ, at her discretion, could have delayed the hearing until a
time when the witness was available or sanctioned the agency.  29 C.F.R. §
1614.109(e) and (f)(3); See also MD-110, at 7-9 to 7-10.  The agency's
failure to provide such information was inappropriate, however complainant
has not established that he was harmed.  Complainant summarily argues
that she would have proven his case.  He does not provide any information
as to what evidence the co-worker would have provided in support of his
claims of discrimination.  Therefore, we conclude that complainant has
not shown how the omission of the witness hampered his case.

Summary Judgment

In the present case, the hearing commenced with both parties permitted to
call and question witnesses.  Complainant had presented his case and the
agency had called only one witness when, following the agency's witness,
the agency motioned for dismissal of the complaint.  Complainant's
representative argued for the denial of the agency's motion.  The AJ
denied the agency's motion but also noted that she would entertain
a motion for summary judgment.  The agency then motioned for summary
judgment.  Complainant's representative did not object to the motion
for summary judgment; however, the representative claimed that summary
judgment should be granted in complainant's favor based on the evidence
within the record and within the testimonies presented.  The AJ then
granted the agency's motion.

The regulations permit AJs to issue decisions without a hearing.  This
regulation is patterned after the summary judgment procedure set forth
in Rule 56 of the Federal Rules of Civil Procedure.  Under 29 C.F.R. §
1614.110 (g), a party may, at least fifteen days prior to the date of
the hearing, file a statement with the AJ prior to the hearing setting
forth the fact or facts and referring to the parts of the record relied
on to support the statement.  EEOC Management Directive 110 provides
further guidance as to the appropriate use of summary judgment to issue
decisions without a hearing.  MD-110, at 7-14.  It also clarifies the
requirements both parties to the dispute must follow to request or oppose
a request for summary judgment.  A motion for summary judgment would
follow discovery but must be processed prior to the hearing itself.  Thus,
the Commission finds that the AJ erred in inviting the agency's motion for
summary judgment following the commencement of a hearing.  The Commission
determines that the AJ committed further error in granting the motion.

The AJ issued her decision following the hearing and based on evidence
and testimony given at the hearing by complainant and the other witnesses.
Therefore, we find that the AJ's factual findings were made post-hearing,
not by summary judgment.  Accordingly, we shall review the AJ's findings
using the standard of substantial evidence.

Merits of the Complaint

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”  Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted).  A finding regarding whether or not discriminatory
intent existed is a factual finding.  See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).  An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.

After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws.  We note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's sex, race,
or age.

As to his claim of discrimination based on his alleged disability, we
find that the AJ properly found that complainant was not covered under
the Rehabilitation Act.  To bring a claim of disability discrimination,
complainant must first establish that he is disabled within the meaning of
the Rehabilitation Act.  An individual with a disability is one who has,
has a record of, or is regarded as having a physical or mental impairment
that substantially limits one or more of his major life activities. 29
C.F.R. § 1630.2(g).  Major life activities include functions such as
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i).

The term "substantially limits" means: unable to perform a major life
activity that the average person in the general population can perform;
or significantly 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).  Factors to be 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).

Complainant testified that when he was tested for sleep apnea, it was
found to stop his breathing up to seventy times an hour while he slept.
The record indicates that complainant was treated with a medical device.
As a result of the device, his sleep efficiency increased to ninety-seven
percent.  Based on the record, we find that complainant has not shown
that he is substantially limited in the major life activities of sleeping
or breathing.  Complainant also noted that when he did not have adequate
sleep, he would have blurry vision, headaches, dizziness, lightheadedness,
and vertigo. Complainant, however, did not indicate how often he would
have nights with inadequate sleep.  Therefore, we find that complainant
has not show that he was substantially limited in a major life activity
such as concentration or caring for oneself.  Finally, complainant
averred that the only limitation related to his impairment is that he
cannot work overtime.  We conclude that this is insufficient to show
that he was limited in working.  Accordingly, the Commission finds that
the AJ properly determined that complainant has not shown that he is
covered under the first definition of an individual with a disability.

As to the second definition of an individual with a disability,
complainant indicated that prior to the medical device, he would stop
breathing up to seventy times an hour while he slept.  The Commission
finds that this statement alone does not provide sufficient information
to determine that he was limited in sleeping or breathing.  Therefore, we
find that complainant failed to show that he has a record of a disability.

Finally, we turn to the third definition, namely whether complainant
can establish that he was regarded as an individual with a disability.
The record indicates that his supervisors were aware that he had sleep
apnea.  However, the Commission finds that awareness of the impairment
alone is not sufficient to establish that complainant was regarded as
an individual with a disability.

Accordingly, the Commission finds no basis to disturb the AJ's finding
that complainant was not discriminated against as alleged.

CONCLUSION

Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.

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:


______________________________
Frances M. Hart
Executive Officer
Executive Secretariat

January 24, 2002
__________________
Date



1  We note that a party, witness or representative appearing before
the Commission may request a reasonable accommodation of a disability.
Therefore, when an individual who requires an accommodation makes his/her
request, Administrative Judges shall provide appropriate reasonable
accommodations.

�