0120083024
06-13-2012
Cheryl L. Gore, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Cheryl L. Gore,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120083024
Hearing No. 443-2008-00072X
Agency No. 4J-530-0035-07
DECISION
On June 26, 2008, Complainant filed an appeal from the Agency's May 28, 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 Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency failed to provide her a reasonable accommodation on the basis of disability (spinal stenosis and fibromyalgia) and discriminated against her on the basis of reprisal (prior protected EEO activity) when, from February 9, 2007 to May 7, 2007, she was not allowed to work her bid assignment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant's bid assignment was a Full-Time Carrier Technician position at the Agency's Wauwatosa Post Office in Wisconsin. Complainant's bid duties included delivering mail on letter routes during the absence of the regularly assigned carriers. Complainant's bid hours were 7:30 a.m. to 4:00 p.m. Complainant sustained an on-the-job neck injury in 1992 and had been on limited duty for over six years.
On November 7, 2006, Complainant's Second Level Supervisor (S2) offered her a modified (limited duty) assignment as a Letter Carrier. On November 14, 2006, Complainant accepted the modified assignment. The duties of the modified assignment consisted of: (1) delivering mail to assigned streets for one hour; (2) casing unassigned routes for two and a half hours; and (3) performing miscellaneous duties within her medical restrictions for two and a half hours. The physical requirements of the modified assignment included no more than 15 pounds of lifting and needing a cart for mail delivery. The work hours of the modified assignment were 10:00 a.m. to 4:00 p.m.1 The modified assignment temporarily removed Complainant from her bid assignment, but her off days, tour, and duty station remained the same.
On February 10, 2007, Complainant's physician provided her with the following medical restrictions: limited to working six hours per day and no lifting over 10 pounds. In addition, Complainant's physician suggested that she "can gradually increase mail carrying/casing from 1hr/day to 4 hours, not to increase by more than 30 mins/wk."
On March 6, 2007, Complainant's physician provided her with the following medical restrictions: limited to working six hours per day, no lifting over 15 pounds, no overhead work, and limited flexing or bending. In addition, Complainant's physician noted: "6 hr/day, 1 hr mail delivery w/ push cart."
On March 9, 2007 and March 20, 2007, Complainant's physician indicated that Complainant should continue her current medical restrictions.
On April 3, 2007, Complainant's physician noted in a letter:
Currently, the patient is tolerating her six hour work [day] well, but should be allowed to gradually increase the duration of her work to fulfill a normal eight hour work day. These restrictions should in no way interfere with her ability to perform her duties as a mail carrier as long as she is able to have a cart and the length of her route is only gradually increased such that she works no more than eight hours per day.
On April 11, 2007, the Agency received the medical documentation dated April 3, 2007. On April 12, 2007, the Agency released Complainant to her bid assignment with permanent restrictions, effective May 1, 2007.
On June 21, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (spinal stenosis and fibromyalgia) and reprisal (prior protected EEO activity) when, beginning on February 9, 2007, she was not allowed to work her bid assignment.
In her affidavit, Complainant averred that her modified assignment duties included the following: clearing the hot case; setting up a route for mail delivery if needed; delivering any express or priority mail that came from the hub station; delivering one hour on the street daily; driving around town and delivering bumps to other carriers; entering the change of address and vacation holds on the computer; and answering phone calls. In addition, Complainant averred that, by not allowing her to work her bid assignment, she was harmed because she was not able to gradually increase her bid duties over a period of time as recommended by her physician. Further, Complainant averred that the Agency allowed other limited duty employees to work their bid assignments while recovering from injuries.
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. In a December 10, 2007 pre-hearing conference call, the Agency and Complainant agreed that the complaint included the following issue: whether Complainant was discriminated against when, from February 9, 2007 to May 7, 2007, she was not allowed to work her bid assignment. Over Complainant's objections, the AJ assigned to the case granted the Agency's February 20, 2008 motion for a decision without a hearing and issued a decision without a hearing on May 21, 2008. 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.
In her decision, the AJ noted at the outset that Complainant had argued, in her March 11, 2008 opposition to the Agency's motion for a decision without a hearing, that she was also discriminated against when she was not permitted to gradually increase her work hours. The AJ stated that the latter issue would be addressed only to the extent that it overlapped with the issue as agreed to by the parties.
Regarding disability discrimination, the AJ assumed that Complainant was a qualified individual with a disability and found that the Agency provided her with a reasonable accommodation. In so finding, the AJ cited Complainant's admission that the Agency did not force her to work outside of her medical restrictions. In addition, the AJ determined that any argument that the Agency should have gradually increased Complainant's hours prior to April 11, 2007 was without merit because Complainant's previous medical documentation limited her to working six hours per day.
Regarding reprisal discrimination, the AJ found that Complainant had established a prima facie case but had failed to show that the legitimate, nondiscriminatory reasons articulated by the Agency for its actions were pretextual. The AJ noted that S2 provided the following reasons for changing Complainant's duties from her bid assignment to the modified assignment: the new duties eliminated downtime, minimized Complainant's non-productive casing of mail, and eliminated the need for overtime for other employees to transport mail to the carriers. In addition, the AJ determined that other employees named by Complainant who remained in their bid assignment were not similarly situated because Complainant's restrictions were in effect for a much longer time period.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the AJ erred in issuing a decision without a hearing and in finding no discrimination. Regarding summary judgment, Complainant argued that, due to the complexities of her case, a hearing was required so that the AJ could understand how to interpret the evidence. Specifically, Complainant asserted that much of the "proof" of her case would come from the testimony of others and from showing a history of retaliation. In addition, Complainant asserted that the AJ had a "tainted" view of her case because, unlike the Agency, she did not have an opportunity to communicate with the AJ and explain her side of the story. Further, Complainant acknowledged that most of the AJ's findings of fact were "true," but asserted that they were either "pointless" or "very misunderstood." Regarding disability discrimination, Complainant argued that the AJ did not address the Agency's failure to gradually increase her bid assignment duties over time. In addition, Complainant asserted that the Agency ignored her physician's suggestion to gradually increase her bid assignment duties in order to improve her endurance and recovery. Regarding reprisal discrimination, Complainant argued that the Agency allowed other carriers with short-term limitations to work their bid assignments while they were recovering from on-the-job injuries.
In response, the Agency argued that Complainant failed to offer any evidence to negate the AJ's findings of fact or to create a genuine issue of material fact. In addition, the Agency argued that the AJ properly found that Complainant failed to present evidence of disability or reprisal discrimination.
ANALYSIS AND FINDINGS
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 (EEO MD-110), at Ch. 9, � VI.B. (Nov. 9, 1999) (providing that both the AJ'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 EEO MD-110, at Ch. 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").
AJ's Issuance of a Decision Without a Hearing
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. 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 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond, and she had the opportunity to engage in discovery. Although Complainant argued on appeal that she did not have an opportunity to explain her side of the story to the AJ, the record reflects that Complainant, through her attorney at the time, submitted a March 11, 2008 opposition to the Agency's motion for a decision without a hearing. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that no genuine issues of material fact exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Reasonable Accommodation
Under the Commission's regulations, federal agencies are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p); see Appendix. For purposes of analysis only, we assume, arguendo, without so finding, that Complainant is an individual with a disability entitled to coverage under the Rehabilitation Act.
Upon review of the record, we find that Complainant failed to establish that the Agency did not reasonably accommodate her when, from February to May 2007, she worked a modified (limited duty) assignment instead of her bid assignment. In so finding, we note that Complainant's medical restrictions during that period included, among other things, limitations to working six hours per day and no lifting over 10 to 15 pounds. In addition, we note that Complainant stated in her January 28, 2008 responses to the Agency's interrogatories, "I am not claiming I was forced to work outside my medical restrictions." While the Agency may not have strictly adhered to the February 10, 2007 suggestion of Complainant's physician to gradually increase her mail carrying/casing duties, there is no indication that, during the time period in question, the Agency worked Complainant outside her medical restrictions. Although Complainant may have preferred to work her bid assignment, we find that the Agency provided an alternate accommodation - the modified assignment - that was effective. We note that although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 9 (as revised Oct. 17, 2002).
Disparate Treatment - Reprisal
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, a complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the basis of reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for not allowing her to work her bid assignment during the time period in question. Specifically, S2 averred that Complainant had previously accepted management's offer of a modified assignment. In addition, S2 averred that Complainant's medical restrictions would not allow her to work her bid assignment because she could only work six hours per day, whereas her bid assignment required her to work eight hours per day.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reasons were a pretext for discrimination. In an attempt to establish pretext, Complainant argued that the Agency allowed other carriers with short-term limitations to work their bid assignments while they were recovering from on-the-job injuries. In addition, Complainant believed that S2 was intentionally singling her out and trying to get even with her for having filed prior EEO complaints.
Upon review, we find that Complainant failed to show that, more likely than not, the Agency's reasons were a pretext for reprisal discrimination. Typically, pretext is proved through evidence that an agency treated an employee differently than similarly situated employees or that the agency's explanation for the adverse action is not believable. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II.E.2. (May 20, 1998). Here, we find that the employees cited by Complainant are not similarly situated for purposes of the instant complaint because most of them could work eight hours per day and all of them returned to full duty within a few months. In contrast, Complainant was restricted from working more than six hours per day and had been on limited duty for over six years. Moreover, we note that Complainant voluntarily accepted the modified assignment in November 2006 and that, as discussed above, the modified assignment was a reasonable and effective accommodation. Complainant has not shown, by a preponderance of the evidence, that the Agency's actions were motivated by any retaliatory animus.
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 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
_6/13/12_________________
Date
1 Complainant did not lose any pay because the Office of Workers' Compensation Programs paid her for an additional two hours per day.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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