0120070751
03-25-2009
Dominga Tedford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dominga Tedford,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070751
Hearing No. 360200600036X
Agency No. 4G780022104
DECISION
On November 22, 2006, complainant filed an appeal from the agency's
October 29, 2006 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
Complainant weighs approximately 215 pounds, and has been diagnosed
with obesity. Complainant asserts that her obesity has caused her to
be slower in performing certain activities, and that reaching, bending,
getting out of bed, and sitting in restaurant booths are difficult and/or
uncomfortable for her.
In 1999, complainant was hired by the agency as a Casual Carrier at the
agency's J.F. Dobie Station in San Antonio, Texas. After it became
obvious that complainant could not meet the physical demands of the
position, complainant resigned and was recommended by her supervisor for
any position other than Letter Carrier. In January 2002, complainant
was rehired as a Mail Processing Clerk, but was released in December
2002 due to agency downsizing. In April 2003, complainant was rehired
as a Casual Custodian and held that position until her term expired.
In June 2004, complainant applied for the position of Part-Time Flexible
City Carrier at the San Antonio Post Office. A Human Resources Specialist
informed complainant that she was selected for employment consideration,
and was scheduled to be interviewed on June 17, 2004.
As part of the interview process, the interviewer contacted complainant's
former manager who had supervised her when she was a Casual Custodian.
The manager told the interviewer that while complainant was thorough in
her work, she performed her duties slowly and with no sense of urgency.
Further, the manager stated that he did not think that complainant could
perform the duties of the City Carrier position because she would not
be able to meet the time constraints to which City Carrier were subject
for delivering mail, and stated that while he would hire her again as a
Custodian, he did not believe she had the ability to perform as a City
Carrier. Subsequently, complainant was not selected for the City Carrier
position.
Complainant asked the General Mail Facility Postmaster for reconsideration
of the decision. As part of a settlement agreement,1 the agency agreed
to allow complainant to "collect more data" from her past supervisors
and that her application then would be reconsidered. While many of the
evaluations were positive, the interviewer found that those evaluations
did not address complainant's ability to perform as a City Carrier.
Subsequently, the interviewer spoke with complainant's supervisor from the
Dobie Station where complainant was a Casual Carrier, who informed the
interviewer that complainant was not able to meet the physical demands
of the Letter Carrier position. Given this information, the General
Mail Facility Postmaster declined to disturb the previous decision not
to hire complainant for the City Carrier position.
On August 30, 2004, complainant filed a formal complaint of discrimination
on the bases of age (DOB: 02/12/1954) and disability (obesity) when she
was not selected for the Part-Time Flexible City Carrier position.
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 the complainant's objections, the AJ assigned
to the case granted the agency's motion for a decision without a hearing
and issued a decision without a hearing on October 4, 2006, finding that
complainant failed to establish that she was subjected to discrimination
as alleged. The agency subsequently issued a final order adopting the
AJ's findings. Complainant now appeals to the Commission.
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).
After a careful review of the record we find that the AJ was correct
in determining that there are no material facts in dispute. Further,
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
an opportunity to respond to the motion, she was given a comprehensive
statement of undisputed facts, and she had the opportunity to engage
in discovery. Therefore, the issuance of a decision without a hearing
was not inappropriate.
Complainant alleges that she was discriminated against on the bases of
her age and her disability when she was not selected for the Part-Time
Flexible City Carrier position. To prevail in a disparate treatment claim,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially 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). Proof of a prima
facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804, n.14.
To establish a prima facie case of disability discrimination under
a disparate treatment theory, the complainant must demonstrate 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) she was subjected to an adverse
personnel action under circumstances giving rise to an inference of
disability discrimination. In order to establish a prima facie case
of age discrimination, complainant must show that she was over 40 years
of age, that she was subjected to an adverse employment action and that
she was treated less favorably than other similarly situated employees
younger than her. See Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 134 (2000); O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. Reeves, 530 U.S. at 134;
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
First we will analyze complainant's disability prima facie case.
We will assume, without finding, that complainant established that she
is an individual with a disability as defined by the Rehabilitation Act.2
Next, complainant must establish that she is a "qualified individual with
a disability," which is defined as an individual with a disability who,
with or without a reasonable accommodation, can perform the essential
functions of the position held or desired. 29 C.F.R. � 1630.2(m).
Complainant does not dispute that it is an essential function of
the City Carrier position to be able to deliver mail within certain
time constraints. As pointed out by the agency, failure to deliver
mail in a timely manner would result in mail not being delivered, the
necessity of overtime, or requiring other Carriers to assist on the route.
Further, complainant previously resigned from a Carrier position because
she could not perform the physical requirements of the position.
Complainant failed to rebut her previous manager's assertions that
she worked slowly and performed her tasks without urgency, and admits
that she performs tasks slower than an average individual because of
her obesity. Complainant did not articulate that she can perform the
City Carrier position within the time constraints, and has not offered
any evidence that would establish that she could perform her duties in
a timely manner with or without reasonable accommodation. We agree with
the AJ that the positive evaluations from complainant's past supervisors
did not address complainant's ability to perform the specific functions
of the City Carrier position with or without reasonable accommodation.
Therefore, complainant failed to establish by a preponderance of the
evidence that she is qualified for the position.
Next, we will assume without finding that complainant established
her prima facie case of age discrimination. The agency articulated
a legitimate, non-discriminatory reason for not selecting complainant
for the position. Specifically, complainant was not qualified for the
position because she could not perform the duties of the position in a
timely manner.
Complainant must now establish, by a preponderance of the evidence, that
the agency's articulated legitimate, non-discriminatory reason is pretext
for discrimination. The record supports the agency's assertion that
complainant was not qualified for the position. Beyond complainant's
bare assertions, the record contains no evidence that would establish
that the agency's actions were motivated by discriminatory animus towards
complainant's age. Therefore, complainant failed to establish pretext.
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 decision, because a preponderance of the evidence in the record
does not establish that discrimination occurred, as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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
March 25, 2009
Date
1 We note that this settlement agreement was at issue in another decision
previously before the Commission. See Tedford v. United States Postal
Service, EEOC Appeal No. 01A52971 (July 20, 2005). There, we found
that the settlement agreement lacked consideration and therefore was
unenforceable. We ordered the agency to reinstate the complaint from the
point processing ceased. That complaint is the subject of the present
appeal.
2 We note that because we are assuming without finding that complainant
is an individual with a disability, it is not necessary to determine
whether the agency regarded complainant as being substantially limited
in a major life activity.
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0120070751
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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