Blake H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Mar 11, 2016

0120143095 (E.E.O.C. Mar. 11, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Blake H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120143095
Hearing No. 551-2014-0005X
Agency No. 1E-837-0005-12

DECISION

Complainant filed an appeal from the Agency’s July 30, 2014 final order 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq. 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
Laborer/Custodian for the Agency at the Boise Processing and Distribution Center. On August
23, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against
him on the bases of race (Asian), religion (Catholic), color (yellow), disability (Arthritis),2 and
age (60) when from January 2012 through August 2012, his light duty schedule was reduced.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 We assume for the purposes of this decision, that Complainant is an individual with a
disability, within the meaning of the Rehabilitation Act.

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At the conclusion of the investigation, the Agency provided Complainant 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. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s April 28, 2014 motion for a
decision without a hearing and issued a decision on July 22, 2014. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

UNDISPUTED FACTS

Complainant had right ankle surgery in November of 2011. Following his surgery, he
submitted a medical status report to the Agency indicating that he could work up to two hours
a day including intermittent standing and walking. Complainant’s restrictions were
accommodated. In January of 2012, Complainant submitted a medical status report from his
doctor which stated that Complainant could perform intermittent standing and walking up to
four hours per day. On January 27, 2012, the Agency granted Complainant light duty to be
performed within his medical restrictions. On February 14, 2012, Complainant submitted
another medical status report again restricting him to four hours of intermittent standing and
walking per day. On March 20, 2012, the Agency was provided a new status report with the
same limitations on walking and standing. In May, 2012, the same restrictions were indicated
by Complainant’s doctor. At no time was Complainant denied light duty, although throughout
this time, he was limited to four hours of work per day.

On June 4, 2012, Complainant was issued a Letter of Warning (LOW) for Failure to Follow
Instructions when he worked beyond his medical limitations. The basis for the LOW was that
on April 29, 2012, Complainant remained on the clock for eight hours though his restrictions
limit him to four hours. The LOW was settled in the grievance process and reduced to an
official discussion.

According to Complainant’s supervisor (S1), although Complainant was never denied light
duty, he was limited in the hours of light duty he was provided. Complainant asked for more
hours but S1 explained to him that the medical documentation the Agency had on file would
not permit him to work more than four hours in his job as Labor/Custodian. S1 advised
Complainant that if he felt this was not right, he should talk to his doctor and have her change
his restrictions, but until then, S1 was bound by the documentation in possession of the
Agency.

On January 24, 2013, Complainant's union and managers resolved Complainant’s grievance
concerning his limitation to four hours of light duty per day. The parties agreed that there was
no violation in limiting Complainant to four hours per day based on his medical restrictions.
On February 28, 2013, Complainant's doctor completed a statement of disability concluding
that Complainant cannot work at all, indicating that Complainant is unable to use his right
ankle joint and cannot perform any duties that require him to ambulate.

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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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative
judge’s determination to issue a decision without a hearing, and the decision itself, will both 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 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. Dep’t of
Def., 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

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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).

The undisputed record shows that Complainant was reasonably accommodated based upon his
medical restrictions. Complainant argues on appeal that in early 2012, the medical restrictions
allowed four hours each of standing and walking intermittently, for a total of 8 hours per day,
and therefore he should have been scheduled for eight hours per day (presumably spending half
his shift standing, and the other half walking; as opposed to management’s understanding that
it was a total of four hours consisting of intermittent walking and standing). We find this
argument unpersuasive, as the undisputed evidence shows that the Agency explained to
Complainant that if he did not agree with management’s understanding of his medical
restrictions, he could seek clarification from his doctor, which he did not do. The record
shows that Complainant submitted approximately six documents with restrictions between
January of 2012 and August of 2012, and nowhere, through August, did the restrictions
change, nor were they clarified to state that the restrictions should be read to allow for eight
hours per day, four standing and then four walking. The Union also agreed with the Agency’s
understanding of the medical documentation that limited Complainant to four hours of custodial
duties per day.

Complainant also states on appeal that he was subjected to retaliatory discipline and changes in
his hours. Neither discipline nor work hours were among the accepted issues of this
complaint; therefore, these claims are not relevant to this appeal.

In the end, as the AJ concluded, the record is devoid of evidence to support a finding that it
was more likely than not that the provision of light duty for four hours per day instead of eight
was discriminatory or motivated by an illegal animus based on his race, color, religion, age
and physical disability. Moreover, consistent with the AJ’s findings, the Agency’s legitimate
non-discriminatory reason is clear, it reasonably understood that Complainant was limited to
four hours of custodian work per day because he could only stand and walk four hours per
day.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s adoption of the AJ’s finding that
Complainant failed to raise a genuine issue of material dispute and that Complainant failed to
establish discrimination as alleged.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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), at Chap. 9 § VII.B (Aug. 5, 2015). 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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or

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costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 11, 2016
Date