Huong A.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jan 3, 2020

0120182477 (E.E.O.C. Jan. 3, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Huong A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120182477 Hearing No. 410-2016-00462X Agency No. 4G320002116 DECISION On July 19, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 14, 2018, final order concerning her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED Whether the EEOC Administrative Judge properly issued a decision without a hearing finding that Complainant failed to establish she was subjected to disparate treatment or discriminatory harassment based on sex (female), disability, and reprisal (for prior EEO activity) when: 1. On or around November 10, 2015, she was issued a Proposed Removal and subsequently, a Step A Grievance Resolution reduced the proposed discipline to a 14 Day Suspension; 2 and 2. On December 4, 2015 and continuing, she was harassed about her medical restrictions and sent home. 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is published to non-parties and the Commission’s website. 2 The Commission notes that this additional allegation was withdrawn by Complainant in her response to the Agency’s motion for a decision without a hearing stating. The instant decision has not taken this claim into consideration. 0120182477 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency’s Columbus Main Post Office in Columbus, Georgia. On February 18, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated above. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, however, the AJ assigned to the case granted the Agency’s February 28, 2017, motion for a decision without a hearing and issued a decision without a hearing on May 30, 2018. 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. The instant appeal followed without any specific statement on appeal from Complainant. The Agency did file a brief in response to Complainant’s notice of appeal requesting that the AJ’s decision be upheld in its entirety. The Agency argued, in pertinent part, that the facts were accurately stated and that the AJ correctly applied the pertinent principles of law. 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 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”). ANALYSIS AND FINDINGS We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. 0120182477 3 The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. The record reflects that Complainant submitted a reply in opposition to the Agency’s motion, but it is void of any alternative statement of the facts, or a statement indicating that there is a dispute with the facts presented by the Agency. After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore 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 undisputed facts, and she was given an opportunity to respond (and did) to the motion and statement of undisputed facts. Under these circumstances, we find that the AJ’s decision without a hearing was appropriate. Disparate Treatment In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII and Rehabilitation Act cases alleging discrimination is a three- step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). 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 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). 0120182477 4 Assuming, arguendo, Complainant established prima facie cases of discrimination based on race, color, and disability, we find that the Agency articulated legitimate, non-discriminatory reasons for the incidents Complainant cites to establish her claim, and that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus. The record makes it clear that Complainant was not sent home on December 4, 2015 for any reason other than her own stated position that she was unable to perform the duties of her position that day, despite the presence of medical documentation stating the contrary. Complainant made the statement regarding her ability to perform the functions of her position to two management officials. Complainant failed to produce any evidence in the form of witness statements or otherwise, to suggest that she did not make these statements regarding her inability to perform the duties of her position. In sum, the record supports the AJ’s conclusion that the Agency’s decision to send Complainant home was based on its determination of how best to effectively manage the workplace and its assessment of Complainant’s performance (ability to perform) and conduct in the workplace. Nothing in the record suggests that management in any way misused or misapplied any Agency policy or procedure. Additionally, nothing presented demonstrates that Agency actions were in any way motivated by discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Denial of Reasonable Accommodation Under the Commission’s regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Id. In order to establish disability discrimination, Complainant must show 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) the Agency failed to provide a reasonable accommodation. See, e.g., Bill A. v. Dep’t of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). “[T]he word ‘accommodation’ ... conveys the need for effectiveness.” Id. “An ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual’s limitations.” Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. A complainant who seeks to hold an agency liable for failing to accommodate a disability need not show that they have suffered an adverse employment action. An agency is required to accommodate an employee’s disability whether or not a failure to do so is motivated by discrimination based on that disability. 0120182477 5 For purposes of analysis only we will assume, without so finding, that Complainant is a qualified individual with a disability. We concur with the AJ’s conclusion that Complainant’s allegation that she was denied a reasonable accommodation is unsupported by the record. The record reflects that upon Complainant advising management that she was unable to perform the duties of her position, she was offered a Modified Job Offer in anticipation of the Office of Workers Compensation deciding her compensation claim. The modified offer complied with Complainant’s medical restrictions as prescribed in her medical documentation, but Complainant denied that she was able to work in accordance to these restrictions and declined the offer. The record reflects that it was Complainant who discontinued the interactive process. We find that nothing in the record that supports any contention that management failed to provide Complainant with a requested reasonable accommodation. The record indicates that management offered Complainant an effective accommodation that would have allowed her to perform the duties of her position, or in this case, a modified position - Complainant declined the offer. Harassment/Hostile Work Environment With respect to any contention by Complainant that she was subjected to a hostile work environment due to the actions of Agency management, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) this claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to demonstrate she was subject to disparate treatment, or unlawful harassment. The Agency’s final order adopting the AJ’s decision therefore is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. 0120182477 6 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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. 0120182477 7 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 January 3, 2020 Date