01a54617
11-04-2005
Denita A. Hylton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Denita A. Hylton v. United States Postal Service
01A54617
November 4, 2005
.
Denita A. Hylton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54617
Agency No. 4C-400-0071-04
Hearing No. 240-2005-00065X
DECISION
Complainant filed an appeal from an agency's June 9, 2005 notice of final
action concerning her complaint of unlawful 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant, a Mail Processing Clerk at the agency's Louisville,
Kentucky postal facility, filed a formal complaint, dated April 22,
2004, alleging discrimination based on race (African American), sex
(female), and disability<1> when on March 31, 2004, she became aware
that she had been assigned to a job on a different tour of duty with
different non-scheduled days off. Following the completion of the
investigation of her complaint, complainant requested a hearing on
the complaint before an EEOC Administrative Judge (AJ). On June 2,
2005, the AJ issued a decision, without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
Complainant appeals.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
In the instant case, the Commission finds that the grant of summary
judgment was appropriate, as no genuine dispute of material fact exists.
The record indicates that complainant, then a customer services clerk,
suffered an on-the-job injury in 2000. In 2002, her job was abolished and
she became an unassigned regular clerk, having worked various temporary
limited duty assignments since that time. When complainant's job was
abolished she was, nominally, designated a mark-up clerk in automation.
Prior to the alleged incident, complainant was working from 9 a.m. to 5
p.m. with Saturday and Sunday as non-scheduled days on one such temporary
limited duty job as an unassigned clerk, in the Diversity Development
Office of the agency's District Office in Louisville, Kentucky.
By general notification, complainant was involuntarily reassigned to the
Louisville Processing and Distribution Center to perform mail processing
duties effective April 17, 2004. Complainant's work hours as a mail
processor were to be from 1:45 p.m. to 9:00 p.m. with non-scheduled days
of Wednesdays and Thursdays.
Upon review, the Commission finds that the grant of summary judgment
in the instant case was appropriate, as no genuine dispute of material
fact exists. After considering all of the evidence in the record, the
AJ found, assuming arguendo that complainant was a qualified individual
with a disability, that she failed to present any substantive evidence
to establish that the reassignment at issue constituted a failure to
accommodate. The AJ stated that the Commission has held that an agency
is not obligated to provide the accommodation preferred by the employee;
rather �any reasonable accommodation by the agency was sufficient to
satisfy its legal obligation.� The AJ stated that in the instant case,
complainant argued that her reassignment to Tour 1 with Wednesday and
Thursday as off days amounted to a failure to accommodate. However,
the AJ indicated that there was no evidence, nor did complainant argue,
that despite her reassignment she was required to perform functions
outside of her medical restrictions. Specifically, the AJ stated that
there was nothing in the record to establish that complainant's desire
to work within the same or similar craft and tour of duty with same off
days as her temporary job in the Diversity Development Office was based
on objective medical evidence. The AJ noted that whether complainant
engaged in work on a first, second, or third shift with non-scheduled
days other than Saturdays and Sundays would have no logical, medical
relationship to a condition which could only be impacted by the amount
and type of direct, physical activity complainant engaged in. The AJ
determined that there was nothing in the record to establish that the
agency's failure to allow complainant to work according to her specific
schedule preferences amounted to a failure to accommodate or inhibited
her ability to perform the essential functions of the position. Based on
the foregoing evidence, the AJ found, and the Commission agrees, that
the reassignment at issue did not amount to a failure to accommodate
because complainant failed to show or claim that she was being forced
to work outside of her medical restrictions.
With regard to complainant's disparate treatment claim based on her race
and sex, the AJ determined that there was no evidence in the record that
similarly situated individuals outside of complainant's statutorily
protected groups were not subjected to the same treatment. The record
indicates that a number of employees, eight including complainant, were
reassigned as complainant. They were both men and women and persons of
different races. Assuming arguendo that complainant had established a
prima facie case of discrimination, we find that the agency articulated
a legitimate non-discriminatory reason for its action. Specifically,
the agency indicated that under the collective bargaining agreement,
unassigned unencumbered employees like complainant were to bid on
posted jobs; however, if the assignment remained unfilled, they were
involuntarily assigned in inverse seniority. Thus, the process required
that all unassigned employees must be assigned - even involuntarily -
before converting any part-time flexible employee to a regular employee.
The agency stated that this process was applied to complainant in
a non-discriminatory fashion. Complainant has not shown that her
reassignment was motivated by discrimination.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the agency's final action is hereby
AFFIRMED because the AJ's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 4, 2005
__________________
Date
1Complainant defined the purported disability
as �permanent restrictions for on the job injury.� Complainant states
that her medical restrictions do not permit her to have �any repetitive
hand movements with her hands in a flexed position, no bending or
pushing, a weight restriction of 25 pounds, [and] no repetitive motion
work or keying.�
2The Commission does not address in this decision whether complainant
is a qualified individual with a disability.