0120073931
06-18-2010
Albert E. Hall, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Albert E. Hall, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120073931
Hearing No. 551-2007-00022X
Agency No. 1E-981-0034-06
DECISION
On September 12, 2007, complainant filed an appeal from the EEOC
Administrative Judge's (AJ) July 27, 2007 decision without a hearing
concerning his 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
AFFIRMS the AJ's decision.
ISSUES PRESENTED
The issues presented are: (1) whether the AJ properly issued a decision
without a hearing finding no discrimination; (2) whether the AJ properly
dismissed dismissing four of complainant's five claims for failure to
timely seek EEO counseling; and (3) whether complainant has established,
by preponderant evidence, that the agency discriminated against him
on the basis of physical disability (right wrist and back injury)
and in reprisal for prior EEO activity when: (a) since November 27,
2005, complainant has not been accommodated for an on the job injury he
sustained on December 26, 1995; (b) on or about January 21, 2005, the
agency removed complainant from his position at the Priority Mail Annex
(PMA) even though the position had been awarded as part of a settlement
agreement dated December 8, 2004; (c) on February 3, 2005, the agency
informed complainant that he was fit for duty to do his regular job at
the Seattle Processing and Distribution Center; (d) on November 27,
2005, the agency removed complainant from his job, allegedly reduced
his seniority and pay from a level five to a level four, took away
his annual leave and sick leave, and rendered complainant unable to
contribute to his Thrift Saving Program (TSP); and (e) on April 6, 2006,
complainant received a letter from the agency indicating that his request
for reasonable accommodation had been denied.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
working a modified job assignment as a Mail Processor at the agency's
Priority Mail Annex (PMA) in Kent, Washington. On December 26, 1995,
complainant injured his wrist while working. On April 10, 1996, his
claim was accepted by the Office of Workers Compensation Programs (OWCP).
Nearly two years later in June of 1998, complainant injured his back
while working. In a December 8, 2004 settlement, the agency agreed
to provide complainant with a modified Mail Processor duty assignment,
effective December 11, 2004.
Complainant performed this job for two months. The physician treating
complainant's wrist injury evaluated complainant on January 5, 2005 and
concluded that he could do his job without restriction. After receiving
this information, the agency informed complainant that he was fit for
full duty and instructed him to report to work at the Seattle Processing
and Distribution Center (SPDC).
On February 9, 2005, the same doctor re-examined complainant and reported
that the type of injury complainant has sustained does not spontaneously
heal itself and should therefore be considered a permanent limitation.
Pursuant to this examination, the doctor completed two duty status forms
which both included restrictions on complainant's ability to lift.
Complainant began working in the SPDC as a Parcel Post Distributor
effective October 15, 2005. Four days later the same examining doctor
completed a form finding that this position was satisfactory, again
noting lifting restrictions. Between October 30 and November 21, 2005,
complainant requested three days of sick leave and used nine days of
annual leave due to back spasms and "early outs."
On November 27, 2005, complainant reported to work and was advised by
a supervisor that there was no work for him due to his claimed medical
limitations. Complainant was asked to provide medical documentation
that would explain why he continued to assert he was unable to perform
the essential functions of his job. There is no evidence in the record
to indicate that complainant ever provided this documentation.
Complainant subsequently requested reasonable accommodation on two
separate occasions. In the January 11, 2006 request, complainant stated
that some of the duties of his assigned position exceeded his medical
restrictions. Complainant met with the Manager of Distribution and
Operations and was told that there were no jobs meeting his requirements
at the present time. Searches conducted on February 1 and March 17, 2006
for a new position for complainant yielded no results. On April 6, 2006,
the agency notified complainant that his request for an accommodation was
denied because his "restrictions were adequately controlled by medication
and rest, [and] did not cause side effects that substantially limit[ed]
[him] in a major life activity."
On June 28, 2006, complainant filed an EEO complaint alleging that
he was discriminated against as set forth in the statement "Issues
Presented" above. 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. When the complainant did not
object, the AJ assigned to the case granted the agency's March 5, 2007
motion for a decision without a hearing and issued a decision without
a hearing on July 24, 2007.
The AJ found that complainant failed to establish a prima facie case of
discrimination on the basis of disability or reprisal. Additionally, the
AJ found that the agency articulated a legitimate, non-discriminatory
reason for its actions which complainant failed to demonstrate was
pretextual. Further the AJ found that accepted issues 1-4 were not
raised with an EEO counselor in a timely fashion and must be dismissed.
Specifically, the AJ reasoned that although complainant alleges that the
adverse agency actions occurred on November 27, 2004, January 21, 2005,
and February 3, 2005, he did not contact an EEO counselor regarding
the agency's actions until March 31, 2006. The AJ found this date
to be outside of the 45-day time limit and that complainant failed to
demonstrate any exceptional circumstances warranting a waiver.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to establish he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
Complainant requests that the Commission overturn the AJ's decision
because he believes that the agency regards all permanent rehabilitation
employees as disabled, thus making all permanent rehabilitation employees
disabled under the Rehabilitation Act.
In response to complainant's appeal, the agency requests that we affirm
the AJ's decision. It is the agency's contention that complainant has not
met his burden, following the agency's articulation of the legitimate,
non-discriminatory reason for its actions, to show that the reason is a
pretext for a discriminatory motive. The agency argues that, aside from
complainant's "speculation and bald conclusion" that the agency regards
permanent rehabilitation employees as disabled, there is no evidence
sufficient to create an inference of discrimination or to overcome the
agency's proffered legitimate, non-discriminatory reason for its actions.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 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").
Summary Judgment
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 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).
Finally, an AJ should not rule in favor of one party without holding a
hearing unless 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).
After a review of the record, we find that there are no genuine issues
of material facts or any credibility issues which required a hearing
and therefore the AJ's issuance of a decision without a hearing was
appropriate. The record has been adequately developed, complainant
was given notice of the agency's motion to issue a decision without a
hearing, he was given an opportunity to respond to the motion, he was
given a comprehensive statement of undisputed facts, and he had the
opportunity to engage in discovery. Under these circumstances, we find
that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000). The Commission has stated that adverse actions
need not qualify as "ultimate employment actions" or materially affect
the terms and conditions of employment to constitute retaliation.
EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15
(May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006) (finding that the anti-retaliation provision protects
individuals from a retaliatory action that a reasonable person would
have found "materially adverse," which in the retaliation context means
that the action might have deterred a reasonable person from opposing
discrimination or participating in the EEO process).
As an initial matter, we find that the AJ properly dismissed claims 3(a)
though 3(d) due to untimely EEO counselor contact. EEOC Regulation 29
C.F.R. � 1614.105(a)(1) provides that an aggrieved person must contact
an EEO Counselor on that matter within 45 days of the date of alleged to
be discriminatory, or in the case of personnel action, within 45 days of
the effective date of the action. See Jenkins v. Department of Defense,
EEOC Appeal No. 0120081296 (May 21, 2010). The alleged discriminatory
acts occurred on November 27, 2005 (accepted issues 1 and 4), January
21, 2005 (accepted issue 2), and February 3, 2005 (accepted issue 3),
but complainant did not contact an EEO Counselor until March 31, 2006,
which is beyond the 45-day regulatory limit. See Investigative Report
(IR), Counselor's Report, Page 1.
Pursuant to 29 C.F.R. � 1614.105(a)(2), the agency or the Commission shall
extend the 45-day time limit when the individual shows that he was not
notified of the time limits and was otherwise not aware, that he did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, or that he was prevented by circumstances
beyond his control from making contact with an EEO counselor. In the
instant matter, complainant has offered no justification for failing to
comply with the 45-day time limit. Further, the record reflects that
complainant has prior experience with the EEO process, eliminating the
possibility that he may not have known about the 45-day time limit.
See IR, Exhibit 2, Page 1.
Assuming, arguendo, that complainant established a prima facie case
of discrimination as alleged in claim 5, we find that the agency
articulated a legitimate, nondiscriminatory reason for its action.
The record reflects that complainant was sent home on November 27,
2005 after he repeatedly stated that he could not perform all of the
essential functions of the position. Further, the record indicates that
complainant failed to bring in requested documentation for why he was
unable to perform the essential functions of an approved duty assignment.
See IR, Affidavit B, Page 9. The record reflects that complainant was
advised by his supervisor that his refusal to perform the essential
functions of the position at SPDC was contrary to the most recent Duty
Status Form completed by his treating physician as part of his OWCP claim.
See IR, Exhibit 18, Page 1.
Because the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to complainant to demonstrate by the
preponderance of the evidence that the agency's reasons are a pretext
for discrimination. Complainant offers no such evidence and therefore
the Commission finds that he has not met his burden under the standard.
Failure to Accommodate
Complainant alleges that the agency failed to reasonably accommodate his
physical disability of on the job right wrist injury and back injury.
On two separate occasions, complainant submitted written requests asking
for a new limited duty job assignment or a reasonable accommodation back
to his position at the PMA.
An agency is required to make reasonable accommodations to the known
physical and mental limitations of an otherwise qualified individual
with a disability unless the agency can show that accommodation would
cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation
includes modifications to the manner in which a position is customarily
performed in order to enable a qualified individual with a disability to
perform the essential job functions. Enforcement Guidance - Reasonable
Accommodation. The Rehabilitation Act of 1973 prohibits discrimination
against qualified disabled individuals. See 29 C.F.R. � 1630. In order
to establish disability discrimination, complainant must show that:
(1) he is an individual with a disability, as defined by 29 C.F.R. �
1630.2(g); (2) he is a qualified individual with a disability pursuant to
29 C.F.R. � 1630.2(m); and (3) the agency failed to provide a reasonable
accommodation. Enforcement Guidance-Reasonable Accommodation.
Upon a complainant's request for reasonable accommodation, an employer
may require that documentation about the disability and the functional
limitations come from an appropriate health care or rehabilitation
professional. See EEOC's Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, Number
915.002, Question 6, (as revised October 17, 2002). The record indicates
that complainant did not submit the requested medical documentation to
the requesting officials regarding his inability to perform the essential
functions of the approved limited-duty assignment. We find that the
agency properly denied complainant's request, because the position he was
performing had been previously approved as satisfactory with specific
restrictions. Nothing in the record substantiates complainant's claim
that he was performing duties exceeding the restrictions outlined on
the requisite Duty Status Form.
For the purposes of this analysis, the Commission assumes, but does not
find, that complainant is a qualified individual with a disability within
the meaning of the Rehabilitation Act. We find that even viewing the
facts in the light most favorable to complainant, he did not establish
that the agency failed to reasonably accommodate him. Base on the
evidence in the record, it appears that complainant was simply unhappy
with the agency's decision to relocate him from PMA to SPDC, based
on the updated duty status form completed by the examining physician.
See IR, Affidavit D, Page 12-13. Nothing in the record indicates that
complainant was unable to perform the essential duties of the position.
See IR, Exhibit 17, Page 1. Complainant never identified the specific
duties that he argued were against his medical restriction, he simply
stated that some of the duties associated with the position were not on
the original job description which he provided to the examining physician
when he (the examining physician) updated complainant's duty status form.
While protected individuals are entitled to reasonable accommodation
under the Rehabilitation Act, they are not necessarily entitled to their
accommodation of choice. See Staropoli v. United States Postal Service,
EEOC Appeal No. 0120062924 (March 26, 2008) citing Castaneda v. United
States Postal Service, EEOC Appeal No. 01931005 (February 17, 1994).
The record evidence establishes that the examining physician carefully
identified what complainant could do and where his limitations were,
and that the agency made job selections for complainant based on this
information. See IR, Affidavit D, Page 12-17. Based on this information,
complainant should have been able to identify exactly which duties of the
position he was unable to perform based on his most recent duty status
form. We find that complainant failed to prove that the agency did not
meet its burden of providing him with reasonable accommodations.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant failed to prove by the preponderance of the evidence that
he was discriminated against as alleged. Accordingly, the AJ's final
decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
June 18, 2010
Date
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0120073931
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120073931