0720070065
10-23-2009
Anne Lau & Chongsun Tuialuuluu Complainants, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Anne Lau & Chongsun Tuialuuluu
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal Nos. 0720070065; 0720070066
Hearing Nos. 370-2005-00012X; 370-2005-00008X
Agency Nos. 1F-941-0021-05; 1F-941-0020-05
DECISION
Following its July 2, 2007 final order (on the consolidated complaints
of both complainants), the agency filed timely appeals both of which
the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal,
the agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) findings of discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. Specifically, the agency asserts that
the AJ's decision to find the agency liable and award the complainants
back pay is not supportable under the facts and the law. For the
following reasons, the Commission REVERSES the agency's final order.
ISSUE PRESENTED
Whether substantial evidence in the record supports the AJ's determination
that the agency unlawfully discriminated against the complainants based
on disability when, on December 14, 2004, their hours were reduced from
8 to 6 per day for a period of nearly one year.
BACKGROUND
At the time of events giving rise to this complaint, both complainants
worked in the NIXIE Unit as part-time flexible (PTF) Flat Sorter
Machine (FSM) Clerks on Tour 1 at the San Francisco Processing &
Distribution Center (P&DC). On May 13, 2005, both complainants filed
EEO complaints alleging discrimination based on disability (back, neck,
and shoulder injuries [Lau]) and carpal tunnel syndrome, left shoulder
tear, and tendonitis [Tuialuuluu]) when, beginning on December 15, 2004
and continuing until they became full-time regular employees, they were
denied work for which they were qualified and which they were physically
able to perform, and employees without disabilities were given that work,
sometimes on overtime.
At the conclusion of the investigation, complainants were provided
with copies of the reports of investigation and notice of their
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainants timely requested a hearing and the AJ held a consolidated
hearing on April 27, 2006 and issued a single decision addressing both
complaints on May 18, 2007.
AJ Decision
The AJ initially found that both complainants were disabled within
the meaning of the Rehabilitation Act. The AJ next noted that there
was no claim or evidence that either complainant lacked the skills or
experience necessary to perform the essential functions of the NIXIE
Unit jobs to which they were assigned when their hours were reduced.
Accordingly, the AJ found that both complainants were qualified
individuals with disabilities protected by the Rehabilitation Act.
The AJ then found that both complainants established a prima facie
case of disability-based discrimination, noting that the complainants'
pay was reduced by two hours per day (25 percent) for nearly one year,
while several PTF employees whose medical impairments did not rise to
the level of "disabilities" did not have their hours reduced and, in
some instances, these employees were permitted to work overtime.
Next, the AJ found that the agency articulated a legitimate,
nondiscriminatory reason for its actions. Specifically, the Tour 1
Supervisor (S1) for the Automated Flat Sorter Machine (AFSM/FSM) Unit
was the complainants' "pay location" supervisor. S1 testified that
after several conversations in December 2004 with his Tour 1 Manager
(M1), he told M1 that he did not think there was enough mail volume to
keep the six employees in the NIXIE Unit busy full time. M1 instructed
him to reduce the hours of three PTFs, namely, Complainants Lau and
Tuialuuluu, and one other PTF, whose limitations were as severe as the
complainants' limitations. The AJ noted that these three employees had
more serious restrictions than other PTFs whose hours were not reduced.
S1 stated that the reason for the reduction in hours was that there was
low mail volume.
The AJ then found that the complainants established that the agency's
reasons were merely pretextual. The AJ noted the following: the
complainants were not given the "low mail volume" explanation when the
reduction in hours occurred, and did not hear the "low mail volume"
explanation until they attended a Mediation session in April 2005.
Second, the complainants contend that the "low mail volume" reason was not
true, explaining that their work tables consistently were full of mail
when they arrived and when they were required to leave after six hours.
Third, S1's testimony reveals that notwithstanding his representations
to M1 that the NIXIE mail volume was low, he had little or no actual
knowledge on which to base this opinion. S1 was the complainants'
"pay location" supervisor only. He did not supervise the NIXIE Unit,
he did not assign work to either complainant, he had never worked in the
NIXIE Unit, and he did not know much about the work performed there.
The Supervisor of the NIXIE Unit (and all Tour 1 manual operations) in
2004 was another individual (S2)1. S1 never discussed the mail volume
in the NIXIE Unit with S2, the person who actually knew about the work
load in that Unit. More importantly, S1 did not discuss with S2 the
specific matter of reducing the complainants' hours nor did he talk
to complainants to find out what work they actually performed. The AJ
found that S1's conclusions about the mail volume and available work was
unreliable and not credible. The AJ noted that M1, the Tour 1 Manager,
knew, or should have known, that S1 knew virtually nothing about the
NIXIE Unit work and mail volume, and she herself did not claim to have
sought an evaluation from anyone who might have had more knowledge.
Additionally, the AJ noted that M1 herself gave inconsistent and shifting
explanations for complainants' reduction in hours. For example,
initially, she stated that although there was enough NIXIE mail for
Tour 1 employees to perform, she had to "save" some mail so there
would be enough damaged mail for the NIXIE workers on Tours 2 and 3.
When further questioned, she admitted that as the Tour 1 Manager,
she had no obligation or responsibility to ensure that there was any
NIXIE mail left for the other two Tours. Furthermore, M1 stated that
damaged mail from the machines is sent to the NIXIE Unit on a continuing
basis throughout the night. The AJ found that another example of M1's
contradictory explanations was contained in a February 2006 declaration
filed to support the agency's Motions for Summary Judgment. M1 offered
an explanation that was not provided in her investigatory affidavit;
namely, that she considered a "maximization" memo that she received in
October 2004. The memo set forth that the reduction in hours occurred
as a result of a Postal Service practice of reducing PTF hours every
few months to extend ("maximize") the time it takes for them to become
full-time employees. At the hearing, however, M1 stated with certainty
that the "maximization" memo had "nothing to do with" the complainants'
reduction of hours. The AJ also noted that as of the date of the hearing,
there were six employees, including both complainants, who were working
full-time (eight hours per day) in the NIXIE Unit, and there was and is
ample work for them all to do. AJ Decision, at 20.
The AJ concluded that the complainants proved discrimination by showing
that the agency's articulated reason was not believable. The AJ also
explained that the record contained additional proof of discriminatory
motive. This included evidence showing that the complainants were
treated differently, and less favorably, than employees outside their
protected class when they were denied work for which they were qualified
and physically able to perform while persons without disabilities,
including other part-time flexible employees, were given that work
and were afforded overtime when the complainants could have performed
the work on straight time. The AJ also found there was additional
evidence of discrimination because Complainant Lau was trained to do
mail production counts but was not allowed to perform this work for
additional hours when her hours were cut. Thus, the AJ concluded that
the agency violated the Rehabilitation Act when it reduced from 8 to 6
hours per day, Complainant Lau's work hours for a period of 12 months,
and Complainant Tuialuuluu's work hours for a period of 10 months.
As remedies, the AJ ordered the agency to pay each complainant appropriate
back pay with interest and lost benefits (from December 15, 2004 through
the dates when they were made full-time); and to post a Notice at the
agency concerning the finding of discrimination. The agency subsequently
issued a final order rejecting the AJ's finding that the complainants
proved that they were subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, the agency asserts that the AJ's conclusions are not
based on substantial evidence in the record. Among other arguments,
the agency asserts that the AJ ignored the corroborating facts and
evidence to support management's decision to cut hours in the NIXIE Unit,
substituted her own opinions in the place of management officials, and
took management's testimony out of context. The agency initially notes
that the AJ failed to consider that part-time flexibles are only entitled
to four hours of work per day under the union contract. The agency
then disputes the AJ's finding that there was "over-whelming evidence"
that the mail volume for the NIXIE unit was not low in December 2004.
The agency points out that the AJ refused to allow evidence of the mail
volume numbers from approximately one year after the complainants' hours
were reduced, which was the best objective evidence available concerning
mail volume numbers in December 2004. The agency also contends that
there was corroborating evidence to support the fact that the actions
taken were not discriminatory. For instance, the agency points out that
people were falling asleep in the unit, and this must have been due to
a lack of work (low mail volume). The agency denies that the record
contains any evidence of pretext.2 Complainants have not submitted any
responsive briefs.
ANALYSIS AND FINDINGS
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. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In analyzing a disparate treatment claim under the Rehabilitation
Act, where the agency denies that its decisions were motivated
by complainants' disabilities 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, each complainant must demonstrate that: (1) she is an
"individual with a disability"; (2) she is "qualified" for the position
held or desired; (3) she 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.
After a careful review of this record, the Commission finds that
substantial evidence of record supports the finding that the complainants
established a prima facie case of disability-based discrimination.
Additionally, the agency has articulated legitimate, nondiscriminatory
explanations for reducing the complainants' work hours, namely, the
mail volume in the NIXIE Unit in December 2004 was too low to keep
six employees busy full-time, therefore, the hours of the complainants
and one other PTF were reduced. Management testified that there was a
gradual decrease in NIXIE mail in 2004 because the machines were enhanced,
thereby producing less damaged mail. We note that M1 provided additional
reasons for reducing the complainants' hours, such as she had taken into
consideration a "maximization memo," and she wished to avoid a grievance
like the one filed by employees in the Box Section who complained that
they were being moved from their regular bid positions to case mail.
We now turn to addressing whether substantial evidence supports the
AJ's conclusion that the complainants showed pretext. First, we find
that the AJ's exclusion of the agency's evidence of mail volume numbers
from one year after the challenged actions occurred, was not an abuse of
discretion. Administrative Judges have broad discretion in the conduct
of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110) at 7-8 to
7-14 (revised November 9, 1999); Bennett v. Department of the Navy,
EEOC Request No. 05980746 (September 19, 2000).
Next, although the agency's witnesses testified that the mail volume was
low or decreased in December 2004, the AJ found that this testimony was
not credible. First, the AJ indicated that she was unable to credit
S1's opinion that mail volume was low because S1 was merely a "Pay
Location" supervisor, not the supervisor in charge of assigning work to
the employees in the NIXIE Unit. Although the agency notes that S1 stated
he was aware of the mail volume in NIXIE because he constantly checked on
the complainants as part of his job function, the AJ made a credibility
determination that S1 was in less of a position to testify about mail
volume in the NIXIE Unit than the actual employees (i.e. the complainants)
who worked there every day. As noted, the individual who was in charge
of assigning the work in NIXIE Unit did not testify at the hearing.
Additionally, the AJ noted that M1 gave numerous explanations for
why she took the challenged actions. The agency correctly asserts
that a manager could quite legitimately have more than one reason for
taking a particular action; however, the AJ found that M1 contradicted
herself in offering explanations for cutting the complainants' hours.
For instance, M1 stated at one point that the "maximization" memo was a
consideration when she reduced the complainants' hours, while during the
hearing she stated with certainty that the same memo had "nothing to do
with" the complainants' reduction of hours. In addition, the AJ noted
that M1 initially stated that although there was enough NIXIE mail for
Tour 1 employees to work, she had to "save" some mail so there would be
enough damaged mail for the NIXIE workers on Tours 2 and 3, but when
further questioned, she admitted that as the Tour 1 Manager, she had
no obligation or responsibility to ensure that there was any NIXIE mail
left for the other two Tours. The AJ found more credible the testimonies
of the complainants, two individuals who were able to credibly describe
how much mail awaited them on a daily basis when they arrived at work,
and how much mail was still there when they were required to clock out
after six hours.3
In addition, we note that the agency argued during the hearing, and noted
again on appeal, that mail volume must have been low because people were
falling asleep in the unit due to a lack of work. The Commission finds
that this argument is far from persuasive. As the AJ aptly asserts "All
it tells me is that [the sleeping employee] wasn't getting enough sleep
before he went to work; it doesn't tell me that there wasn't enough mail."
Hearing Transcript (HT), at 99. Finally, we find no error in the AJ's
apparent failure to consider that the agency was only obligated per
the union contract to assign 4 hours of work to part-time flexibles.
The relevant question is whether the complainants' in this case were
singled out, and had their hours reduced from what they had previously
been, because of their membership in a protected group. For the reasons
stated above, we find that the AJ's determination, that the agency's
explanation was more likely than not a pretext for disability-based
animus, is supported by substantial evidence in the record.4
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
(consolidated) final order. We further direct the agency to comply with
the Order below.5
ORDER
Within sixty (60) days of this decision becoming final, the agency is
ordered to take the following remedial action:
(1) award to Anne Lau back pay, with interest, and all lost benefits for
the period December 15, 2004 through the date she was made full-time in
December 2005.
(2) award to Chongsun Tuialuuluu back pay, with interest, and all lost
benefits for the period December 15, 2004 through the date she was made
full-time on or about October 29, 2005.
(3) provide at least eight (8) hours of training to the responsible
officials on the laws prohibiting employment discrimination, paying
particular attention to agency's obligations under the Rehabilitation
Act.
(4) consider taking disciplinary action against the responsible officials.
The Commission does not consider training to be disciplinary action.
The agency shall report its decision to the Compliance Officer. If the
agency decides to take disciplinary action, it shall identify the action
taken. If the agency decides not to take disciplinary action, it shall set
forth the reason(s) for its decision not to impose discipline. If any of
the responsible management officials have left the agency's employ, the
agency shall furnish documentation of their departure including dates.
(5) post a notice in accordance with the paragraph below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its San Francisco, California Processing
& Distribution Center, copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848,
Washington, D.C. 20036. 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 (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, D.C. 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 (R0408)
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 (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
_____10/23/09_____________
Date
1 S2 did not testify at the hearing.
2 On appeal, the agency does not specifically dispute the AJ's
conclusion that the complainants are disabled within the meaning of
the Rehabilitation Act. Consequently, we decline to address this issue
herein. See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (MD-110), Ch. 9, Sec. IV(A) at p. 9-10 (November 9,
1999), which provides that the Commission has the discretion to only
review those issues specifically raised on appeal.
3 The AJ stated: "I find the testimony of Ms. Lau to be entirely
credible based on her demeanor, her forthright manner of speaking, and the
substance of her statements." AJ Decision, at 19. The AJ additionally
stated: "Ms. Tuialuuluu, whom I found to be entirely credible based on
her demeanor, her candor, and the substance of her testimony..." Id.,
at 19-20.
4 Although the AJ did perhaps rely on her own experiences when she stated
that "Any Postal Service Customer knows" that December is a busy month for
the Post Office, we do not find, however, that the AJ's own experiences
were the reason for disbelieving that mail volume was low in the NIXIE
Unit in December 2004. Instead we find that the conclusion was based,
primarily, on the complainants' credible testimony that mail volume was
high enough for them to continue working for 8 hours per day, contrasted
with the managers' testimony to the contrary, which for several reasons,
the AJ found to be not credible.
5 In her decision, the AJ made no mention of the complainants' requests
for compensatory damages, even though both complainants initially
asserted during the investigation that they suffered physical and
emotional problems due to the agency's actions. The question of whether
the complainants suffered harm due to the agency's actions came up very
briefly during the hearing, e.g. HT, at 84-85, and we presume that the
AJ concluded that complainants had failed to prove any entitlement to
compensatory damages. Regardless, on appeal, neither complainant has
challenged the AJ's failure to award compensatory damages, and therefore,
we presume that the complainants accept (and do not appeal) the decision
not to award compensatory damages.
??
??
??
??
2
0720070065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
11
0720070065; 0720070066