0120090725
06-11-2010
April D. McDonald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
April D. McDonald,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120090725
Hearing No. 470-2007-00207
Agency No. 1J-461-0013-07
DECISION
On November 21, 2008, Complainant filed an appeal from the agency's
October 20, 2008 final order concerning her 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). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Handler at the agency's Processing and Distribution Center
in Indianapolis, Indiana. On March 23, 2007, Complainant filed an EEO
complaint alleging that she was discriminated against on the bases of
disability (left and right shoulders and wrist) and in reprisal for
prior protected EEO activity when, on or about September 25, 2006,
her request for a reasonable accommodation was not granted.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over Complainant's objections, the AJ assigned to
the case granted the agency's June 19, 2008 motion for a decision without
a hearing and issued a decision without a hearing on October 10, 2008.
Initially, the AJ found that Complainant failed to establish a prima
facie case of discrimination based on disability. The AJ determined
that the record established that Complainant's injuries resulted in her
being placed on very restrictive work restrictions and substantially
limited her ability to care for herself and lift materials over 5 pounds.
Complainant however, failed to show that she could perform any function
or activities with or without a reasonable accommodation.
Assuming Complainant had established a prima facie case of discrimination,
the AJ found that the agency had granted Complainant several
accommodations since her injury. Specifically, the since Complainant's
restrictions did not allow her to perform the duties of a Mail Handler,
the agency provided Complainant a Flat Sorter Machine Clerk position.
Additionally, the agency provided Complainant other duties she could
perform. The AJ determined that Complainant desired to be transferred
to Tour 2 so that she could ride to work with her significant other who
was assigned to Tour 2. The agency held an interactive discussion in an
attempt to find a position for Complainant on Tour 2. Complainant was
unable to identify a position that she could perform with or without a
reasonable accommodation on Tour 2. The agency was not required to create
a job in the form of an accommodation for Complainant; therefore, the AJ
found that the agency had not denied Complainant's request for reasonable
accommodation. Likewise, Complainant had not identified a similarly
situated employee outside her protected group who was granted a schedule
change under similar circumstances. Thus, the AJ found that Complainant
had not been discriminated against on the basis of disability.
As to reprisal, the AJ assumed Complainant had established a prima
facie case of discrimination and found that the agency had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
Complainant was not granted a change of tour because she and the agency
jointly could not identify a position Complainant could perform on
Tour 2 or an available funded position that she could perform with or
without reasonable accommodation. The AJ found that Complainant failed
to establish that the agency's reasons were pretextual and therefore
was not discriminated against on any of the alleged bases. The agency
subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the agency's argument that it was
under no obligation to create a job for her as a reasonable accommodation
is clearly erroneous. Complainant argues that it was unreasonable for
the agency to suggest to her that she could have someone else drive her
to work, but changing her schedule so that her boyfriend could drive her
to and from work was unreasonable. Additionally, Complainant alleges
that the agency failed to engage in the interactive process and offered
Complainant unreasonable accommodations. Accordingly, Complainant
requests that we reverse the final order and remand the complaint for
a hearing. The agency requests that we affirm the final order.
ANALYSIS AND FINDINGS
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").
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.
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 he or 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).
Here, we find that the AJ properly issued a decision without a hearing
as the record was adequately developed and no genuine issue of material
fact is in dispute. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003).
Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. � 1630. In order to establish that
Complainant was denied a reasonable accommodation, Complainant must
show that: (1) she is an individual with a disability, as defined by 29
C.F.R. � 1630.2(g); (2) she 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. See Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC No. 915.002 (as revised Oct. 17, 2002).
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 an undue hardship. See 29 C.F.R. �� 1630.2(c)
and (p). In the instant case, we will assume without deciding (for
the purposes of this decision) that Complainant is an individual with
a disability and a qualified individual with a disability.
After a review of the record, the Commission finds that Complainant
has not shown that the agency denied her a reasonable accommodation.
In particular, the record establishes that Complainant was provided a
modified assignment within her restrictions until her last day at work
on January 15, 2007. Complainant asserts that she requested a schedule
change to Tour 2 on September 25, 2005 because her boyfriend (her
ride to and from work) was transferred to Tour 2 for medical reasons.
Report of Investigation (ROI), Comp.'s Aff. at 5. The Occupational
Health Nurse Administrator (OHNA) avers that there were no modified job
assignments available on Tour 2. ROI, OHNA's Aff. at 2. Additionally,
the Light/Limited-Duty Coordinator (LDC) states that work was available
for Complainant on Tour 1 or Tour 3, but not on Tour 2. ROI, LDC's
Aff. at 1-2. OHNA affirms that the agency suggested alternatives to
Complainant such as having someone else drive her or utilizing public
transportation. ROI, OHNA's Aff. at 2. Alternatively, the agency
suggested that Complainant's significant other could bid for an assignment
on Tour 1 to enable him to drive Complainant to and from work again.
ROI, LDC's Aff.. at 2.
Although Complainant contends that work existed on Tour 2 that she could
perform, she has not identified an actual vacant, funded position at
the agency that she could have performed at the relevant time, and it
is her burden to do so. We note that an employer is not required to
create a job for a disabled employee, nor is it required to transform
its temporary light or limited duty assignments into permanent jobs to
accommodate an employee's disability. See Mengine v. Runyon, 114 F. 3d
415, 418 (3d Cir. 1997); see also Woodard v. United States Postal Serv.,
EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement Guidance:
Workers Compensation and the ADA, EEOC Notice No. 915.002, at 21 (Sept. 3,
1996). While Complainant may not have been offered the reasonable
accommodation of her preference, an employer is not required to provide
the precise accommodation the employee or applicant wants, so long as
the accommodation offered is an effective one under the circumstances of
the situation. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002).
Complainant has presented no evidence that her modified assignment on
Tour 1 was an ineffective accommodation. Accordingly, Complainant has not
shown that the agency failed to provide her a reasonable accommodation.
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). She must generally
establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
In this case, the Commission finds that Complainant has not shown that she
was discriminated or retaliated against as alleged. Upon review of the
record and assuming that Complainant had established a prima facie case
of discrimination on the alleged bases, the agency submitted legitimate,
nondiscriminatory reasons for its actions. Specifically, as discussed
above, Complainant was not granted a change of tour because neither
she nor the agency could identify any available positions she could
perform on Tour 2. LDC confirms that Complainant was provided work
within her restrictions on Tour 1, but Complainant requested to work
on Tour 2 with her significant other. ROI, LDC's Aff. at 1. Further,
OHNA affirms that Complainant requested to be assigned to "daylight"
hours with her significant other however her work restrictions did
not require her to only work daylight hours. ROI, OHNA's Aff. at 2.
Finally, the Postmaster avows that there was no work available for
Complainant on Tour 2, but work was available within her restrictions
on Tour 1 and Tour 3. ROI, Postmaster's Aff. at 1.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, Complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this by
showing that the agency was motivated by a discriminatory reason. Id.
(citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). We find
that aside from Complainant's bare assertions, the record is devoid
of any persuasive evidence that discrimination was a factor in any of
the agency's actions. At all times the ultimate burden of persuasion
remains with Complainant to demonstrate by a preponderance of the evidence
that the agency's reasons were not the real reasons, and that the agency
acted on the basis of discriminatory animus. Complainant failed to carry
this burden. Accordingly, we find that Complainant has failed to show
that she was discriminated or retaliated against as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination or reprisal occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if 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 11, 2010_______________
Date
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0120090725
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090725