0120100528
12-16-2011
Breta M. Jones, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Breta M. Jones,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120100528
Hearing No. 460-2008-00105X
Agency No. 4G770004008
DECISION
On November 16, 2009, Complainant filed an appeal from the Agency’s
October 8, 2009, 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 Commission deems the appeal
timely and accepts it 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 Processing Clerk at the Bear Creek Station in Houston, Texas.
On December 26, 2007, Complainant filed an EEO complaint alleging
that the Agency discriminated against her on the basis of disability
(bilateral rotator cuff syndrome) when beginning on September 24, 2007,
she has been harassed with regard but not limited to, work hours and
days off, duty assignment and work location.
At the conclusion of the investigation, the Agency provided Complainant
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 February 27, 2009,
motion for a decision without a hearing and issued a decision on March
24, 2009. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.
UNDISPUTED FACTS
On April 6, 1998, Complainant filed a work related injury claim with
the U.S. Department of Labor (DOL). Complainant's claim was eventually
accepted by DOL. Upon receipt of medical documentation indicating
that Complainant's condition was permanent and that she was unable to
meet the physical requirements of her position, the Agency presented
Complainant with a Rehabilitation Program Job Offer as a Modified Mail
Processing Clerk at the Bear Creek Station. Complainant was advised
that her official position description of Mail Processing Clerk would
be modified to correspond to her defined work limitations. Complainant
accepted the Rehabilitation Job Offer.
The most recent medical documentation dated October 31, 2005, indicates
that Complainant's limitations included a lifting restriction of no
greater than 20 pounds and a restriction against any reaching above
the shoulder. The Acting Manager at Bear Creek Station (S1) testified
that based upon her medical documentation Complainant was restricted
from dispatching certain mail and performing some of the more heavy
distribution needed throughout the day with flats and parcels. S1 also
asserts that there were not enough letters and light flats to fill
an eight hour day, every day for the Complainant. Accordingly, on
September 24, 2007, Complainant was provided with a written notice of
schedule change advising her to report to the GPO Window/Box Mail Unit
(Downtown Station) beginning on September 25, 2007. The notice further
advised her that upon her arrival at the GPO Window Unit she would be
issued a schedule of duties and responsibilities based on her permanent
medical restrictions dated October 31, 2005.
Complainant reported for work at the Downtown Station on September 25,
2007. On October 2, 2007, the Manager for the GPO Window Unit (S2)
presented Complainant with an Offer of Modified Assignment for her
review and signature which offered Complainant a new position within
her medical restrictions. Although Complainant refused to sign the
Modified Job Offer, she worked the Modified Distribution Clerk at the
Downtown Station from September 25, 2007 until October 10, 2007 when
she was assigned to the Copperfield Station as a Lobby Director.
On or about October 11, 2007, a grievance was initiated on Complainant's
behalf by the American Postal Workers Union (APWU). On or about October
13, 2007, Complainant submitted a written request to management asking
to be assigned to Bear Creek Station as a Lobby Director. On November
2, 2007, Complainant was presented with an Offer of Modified Assignment
as a Lobby Director at the Bear Creek Station. The job offer entailed
work hours from 8:30 a.m. to 5:00 p.m. with Sundays and Mondays off.
The physical requirements of the job offer were within Complainant’s
medical restrictions. Complainant signed the November 2, 2007 Modified
Job Offer indicating that she accepted the offer. However, she noted
a request for changes to the schedule.
On November 6, 2007, Complainant was presented with another Modified
Job Offer as a Lobby Director at the Bear Creek Station. The only
difference from the November 2, 2007 Modified Job Offer was that the
scheduled work hours were 8:45 a.m. to 5:15 p.m. with Saturdays and
Sundays off. In addition, the physical requirement of sitting was
changed from "8 hours intermittently" to "1-2 hours intermittently."
Complainant signed the November 6, 2007 Modified Job Offer indicating that
she was accepting the position but she, again, made a notation that she
accepted the position with changes to the scheduled hours. She requested
a schedule that entailed Tuesday through Friday beginning at 7:00 a.m.,
Saturdays beginning at 5:00 a.m., and Sundays and Mondays off.
On November 6, 2007, S1 advised Complainant in writing that if she
accepted the modified job offer with changes, the assignment would
be nullified because the scheduling changes she proposed were not
conducive to the operational needs of the Lobby Director position.
Complainant refused to sign the official copy of the Modified Job Offer
without her handwritten changes. Based on Complainant's rejection of the
Modified Job Offer as it was presented to her, S1 instructed Complainant
to return to the GPO Box Section where she would be given a schedule of
duties and responsibilities based on her medical restrictions.
On November 16, 2007, Complainant was again presented with an Offer
of Modified Assignment as a Lobby Director at the Bear Creek Station.
The only difference between the November 16, 2007 offer and the previous
November 6, 2007 offer was that the scheduled days off were now Sundays
and Wednesdays. Complainant signed indicating that she was accepting the
job but notated that she was doing so "under protest." Complainant was
assigned to the Bear Creek Station effective November 17, 2007.
After returning to Bear Creek Station and beginning her assignment as
a Lobby Director, Complainant continued to ask for her work schedule
to be changed. In an effort to resolve the pending grievance, the
Agency agreed to change Complainant's schedule to the hours and days
off that she requested. The Agency presented a Modified Job Offer to
the Complainant on January 25, 2008, with the work hours and scheduled
days off that she had requested. A formal Step 2 grievance settlement
was entered into on February 13, 2008.
CONTENTIONS ON APPEAL
In her appeal, Complainant contends that she was involuntarily assigned
to several different positions because she was an injured employee.
Complainant also asserts that the Agency did not provide a clear
explanation as to why she was removed from her original position.
Complainant also asserts that she was improperly denied the opportunity
to call witnesses on her behalf.
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 Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9, 1999)
(providing that both the Administrative Judge’s determination to issue
a decision without a hearing, and the decision itself, are subject to de
novo review). 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”).
ANALYSIS AND FINDINGS
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.
We assume for the purpose of this decision that Complainant presented
sufficient evidence to establish that she is an individual with a
disability, within the meaning of the Rehabilitation Act.
However, we agree with the AJ and Agency that Complainant failed to
present sufficient evidence so that a reasonable person could conclude
that the legitimate, non-discriminatory reasons for the Agency’s
employment actions were pretext or motivated by discriminatory animus.
Specifically, we note that Agency officials corroborate the assertion
that Complainant was offered certain works hours because the hours were
designed to provide support in the lobby during the busiest times of
the day when the customers needed the most assistance. In addition, she
was assigned to different postal facilities in an effort to provide her
with eight hours of productive work per day. We agree with the AJ that
aside from Complainant’s uncorroborated assertions, the record does
not support a finding that she was subjected to conduct sufficiently
severe or pervasive to establish a hostile or abusive work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal1,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
December 16, 2011
__________________
Date
1 We disagree with Complainant’s assertion that the Agency failed
to articulate a clear legitimate, non-discriminatory rationale for its
employment actions and note that Complainant has not presented evidence
to rebut the Agency’s assertions.
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01-2010-0528
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013