April D. McDonald, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionJun 11, 2010
0120090725 (E.E.O.C. Jun. 11, 2010)

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

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0120090725