Irma Baca, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionDec 17, 2009
0120073234 (E.E.O.C. Dec. 17, 2009)

0120073234

12-17-2009

Irma Baca, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Irma Baca,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 0120073234

Hearing No. 480-2006-00314X

Agency Nos. 4F926006306; 4F-926-0145-06

DECISION

On July 11, 2007, complainant filed an appeal from the agency's June

12, 2007 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 deemed

timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the

following reasons, the Commission AFFIRMS the agency's final order.

ISSUES PRESENTED

(1) Whether the AJ appropriately issued a decision without first holding

a hearing.

(2) Whether complainant established that she was subjected to

discrimination or retaliation, as alleged.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a distribution clerk at the La Verne, California Post Office. Complainant

filed two EEO complaints, which were subsequently consolidated, alleging

that she was discriminated against on the bases of disability (shoulder

and arm injuries; arthritis) and age (57) when:

(1) on December 15, 2005, she was offered light duty with Sundays and

flexible off days, and after an injury recurrence1 her duty hours were

changed (start time changed from 6:00am to 10:00am); and she was not

returned to work on February 14, 2006.

Complainant additionally alleged that she was discriminated against on the

bases of disability, age, race/national origin (Hispanic), and reprisal

for prior protected EEO activity [arising under the Rehabilitation Act

and ADEA] when:

(2) she was denied light duty work on or about May 25, 2006.

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. When complainant did not object,2 the AJ assigned

to the case granted the agency's February 13, 2007 motion for a decision

without a hearing and issued a decision on June 8, 2007.

AJ Decision

The AJ found that complainant is an "individual with a disability" as

she established that she was substantially impaired in the major life

activity of lifting, noting that complainant's lifting restrictions

ranged from 5 to 10 pounds. The AJ next found that complainant failed

to show that there was a genuine material dispute that she was unable to

perform the essential functions of a distribution clerk position, even

with an accommodation. The AJ further found that the agency offered

complainant modified clerk duties because she was collecting OWCP, and

the agency had a financial incentive to find any type of work within

her medical restrictions to minimize how much it had to reimburse the

DOL because of her on the job injury. The AJ found however, that after

complainant refused (or failed to act) on the limited duty job offers

related to her on-the-job injury between December 2005 and February 2006,

and after she suffered an off the job injury that precluded her from

working the previous limited duty job offers, the agency made one last

attempt to offer her light duty work as a modified clerk performing

less than the essential functions of a distribution clerk position,

which was not a vacant, funded position.

The AJ went on to find that from April 17 to about May 25 or 30, 2006,

the agency allowed complainant to throw box mail within her medical

limitations, which was one of several essential duties of a distribution

clerk. However, complainant was only able to do this for 2 to 3 hours

a day and then she would complain about her arm hurting and she would go

home. On May 30, 2006, complainant refused to help a letter carrier put

labels onto mailing jackets because her impairments were so substantially

limiting that she could not perform this task. The Officer-in-Charge

(OIC) then asked the District Reasonable Accommodation Committee (DRAC) to

meet with complainant and re-engage the interactive process to determine

what work she could perform so that a search could be made for vacant,

funded positions for which she was qualified, and could be reassigned.

The AJ found that in June 2006, the DRAC committee met with complainant

and she provided updated medical documentation, and information about

the type of work she could and could not perform. The AJ found that a

search was then conducted for vacant, funded positions in the Southern

California region, but there were no such positions that would accommodate

complainant's medical restrictions.

The AJ concluded that the agency met its legal obligations under the

law, noting that the agency engaged in the interactive process and

conducted a search for vacant, funded positions. Further, the AJ found

that complainant failed to meet her burden of establishing that it is

more likely than not that there were vacancies during the relevant time

period into which she could have been reassigned. The AJ concluded

that complainant failed to establish that she is a qualified individual

with a disability and failed to show that the agency subjected her to

disability-based discrimination under either issue.

The AJ then addressed complainant's allegation that she was not reasonably

accommodated because of her national origin, age, and reprisal. The AJ

found that complainant failed to proffer sufficient evidence to show

how these bases were invoked in the interactive process. According to

the AJ, even assuming arguendo that complainant established a prima

facie case on any or all bases, she failed to show that there was a

genuine material dispute concerning the agency's articulated reasons.

The AJ concluded by finding no discrimination. The agency subsequently

issued a final order adopting the AJ's finding that complainant failed

to prove that she was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant does not provide a supporting brief, but attaches

a portion of a Decision and Order dated June 11, 2007, by the United

States Department of Labor, Employees' Compensation Appeals Board,

which apparently found that she failed to establish that she sustained an

injury while in the performance of duty. The agency asks the Commission

to affirm the final order.

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).

In this case, the Commission finds that the AJ properly issued a decision

without first holding a hearing, because there were no genuine issue of

material fact or credibility in dispute.

Disability Claims

In order to be entitled to protection from the Rehabilitation Act,

complainant must make the initial showing that she was a "qualified

individual with a disability." Assuming arguendo that complainant was

an individual with a disability within the meaning of the Rehabilitation

Act, we conclude that complainant has not proven, by a preponderance

of the evidence that she was a qualified individual with a disability.

A "qualified individual with a disability" is an individual with a

disability who satisfies the requisite skill, experience, education and

other job related requirements of the position such individual holds or

desires, and who, with or without reasonable accommodation, can perform

the essential functions of the position. 29 C.F.R. � 1630.2(m).3

The record reveals that on February 14, 2006, while complainant was off

work, she refused the agency's December 12, 2006 job offer (which required

her to do nixies, return to sender mail and "CFS" duties), saying in

a note that the job offer was not "consistent with my restrictions,"

but not clearly specifying which aspect(s) of the offer violated her

restrictions. See ROI, Ex. 4 at 1. The agency claims that complainant

was actually unhappy that her start time had changed from 6:00am to

10:00am. In response, the agency created a more detailed job offer for

complainant on February 28, 2006. This job offer specifically stated that

complainant would not be required to lift more than 5 pounds, push a cart

more than 50 to 100 feet, stand for more than 45 minutes, or sit for more

than 3 hours. The record indicates that complainant never responded to

this job offer. In April, complainant was permitted to return to work,

throwing mail into boxes but she experienced pain and had to leave early.

Accordingly, in May 2006, management asked complainant to help a letter

carrier put labels onto mailing jackets, however, she refused and was sent

home because there was no other light duty work available for her to do.

Finally, the OIC again contacted the DRAC concerning whether there was

work for complainant. The DRAC conducted a search for a position for

complainant in the cities of Industry, Santa Ana, Anaheim, Long Beach and

Ontario, but no vacant funded position was available within complainant's

restrictions.

The record therefore indicates that complainant could not perform the

essential functions of her position during the relevant time period,

nor were there any vacant, funded position to which she could have

been reassigned. Therefore, complainant did not show that she was a

"qualified individual with a disability" during the relevant time.

Accordingly, we cannot conclude that she was subjected to a violation

of the Rehabilitation Act.

Disparate Treatment

As to the claim that the denial of reasonable accommodation was based

on complainant's national origin, age and/or prior EEO activity,

we note that in the absence of direct evidence of discrimination, the

allocation of burdens and order of presentation of proof in a Title VII

or ADEA case 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). First, complainant must establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination; i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

Here, assuming complainant could establish a prima facie case of

discrimination with respect to her alleged bases, the agency articulated

legitimate, nondiscriminatory reasons for its actions. Specifically,

as to issue (1), management stated that complainant's duty hours were

changed by her immediate supervisor based on her medical restrictions

(i.e. she could not perform the duties of unloading trucks, pushing or

pulling) and she was given a modified job offer within those restrictions.

Management denied that complainant was told she could not return to work.

The OIC stated that complainant was not happy with the job offer and

never accepted it. The evidence is devoid of any evidence of pretext

as to this issue.

As to issue (2), the OIC explained that on April 6, 2006, complainant

went before the DRAC and indicated to them that she would be applying

for disability retirement. The OIC stated that after a search was

conducted for a temporary detail not to exceed 90 days, no vacant, funded

positions that would accommodate complainant's medical restrictions,

were identified. The OIC stated that on or around May 30, 2006,

complainant was asked to go home because she refused to do light duty

work that was offered to her, and no other light duty work was available.

This record is devoid of any persuasive evidence that the agency's reasons

are most likely pretexts for national origin, age, or reprisal-based

discrimination.

CONCLUSION

After a careful review of the record, the Commission finds that the

AJ's decision without a hearing was appropriate, as no genuine issue

of material fact is in dispute. See Petty v. Department of Defense,

EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the

agency's final order.

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

_______12/17/09___________

Date

1 On December 17, 2005, complainant fell in the parking lot of a grocery

store and injured her lower back, buttocks and hips.

2 The AJ noted in his decision that complainant failed to submit the

required pre-hearing report. See AJ Decision at 2.

3 We note that an employer is not required to create a job for a disabled

employee, nor is it required to transform its temporary light or limited

duty assignments into permanent jobs to accommodate an employee's

disability. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir. 1997);

see also Woodard v. United States Postal Serv., EEOC Appeal No. 01A21682

(July 29, 2003); EEOC Enforcement Guidance: Workers Compensation and

the ADA, EEOC Notice No. 915.002 at 21 (September 3, 1996).

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0120073234

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120073234