0120101332
08-03-2011
Kathleen D. Martinez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Kathleen D. Martinez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120101332
Hearing No. 550-2008-00364X
Agency No. 4F-956-0007-08
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s January 7, 2010 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency’s Post Office in Stockton, California.
On January 17, 2008, Complainant filed an EEO complaint alleging that
the Agency subjected her to a discriminatory hostile work environment
on the basis of disability and in reprisal for prior protected EEO
activity when, on or around September 29, 2007, she was told that she
could no longer perform her duties because they were management duties
and she would have to sit in a room and do nothing; and subsequently,
she was given a detail as a 204B (on October 26, 2007) until she was
removed from the detail on December 10, 2007, and she has still not been
provided with meaningful work.
The Agency initially dismissed the complaint pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim. The Agency determined that
the complaint amounted to an impermissible collateral attack on the Office
of Workers’ Compensation Programs (OWCP) process. Complainant appealed
and, in Martinez v. U.S. Postal Serv., EEOC Appeal No. 0120081651 (May 20,
2008), the Commission determined that the Agency improperly dismissed
the complaint. The Commission found that neither Complainant’s
formal complaint nor her pre-complaint documents made reference to an
explicit dissatisfaction with the OWCP process. Rather, Complainant
addressed her disability as it related to the Agency subjecting her to
alleged discrimination by not allowing her to perform her duties. As a
result, the Commission reversed the Agency’s dismissal and remanded
the complaint for further processing.
At the conclusion of the investigation, Complainant was provided
with a copy of the report of investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. After both parties submitted
motions for a decision without a hearing, the AJ assigned to the case
issued a decision without a hearing on December 30, 2009.
Initially, the AJ assumed arguendo that Complainant was an individual
with a disability as defined under the Rehabilitation Act. The AJ
determined that prior to 2007, Complainant had sustained work-related
injuries to her right and left hands which prevented her from performing
the essential duties of her Carrier position. She was routinely given
temporary limited duty tasks at the Stockton Post Office and make-work
assignments within her restrictions. In Fall 2007, a reduction in mail
volume resulted in an insufficient workload for those regularly working
in clerk craft positions. As a result, the Agency began “excessing”
these positions. Working with the union, management made a decision
to minimize clerk craft related tasks from being performed by non-clerk
craft employees. This policy change directly affected Complainant because
she belonged to the carrier craft and much of the make-work she had been
routinely assigned was related to clerk craft tasks. The policy change
complied with the relevant collective bargaining agreements.
Complainant continued to be accommodated; however, she was no longer
given full time make-work assignments on a routine basis. Instead, she
was provided an accommodation working on a standby basis and given carrier
craft assignments within her restrictions when they were available; or she
was assigned clerk craft tasks or administrative responsibilities when no
other clerk craft employee or administrative staff person was available.
As a result, Complainant’s work opportunities became more limited.
In late-October 2007, Complainant was given a detail assignment to serve
as 204B temporary supervisor, but when the regular supervisor returned,
Complainant’s detail assignment ended and Complainant was given various
clerk craft tasks to perform when no clerk craft employee was available.
The union, however, challenged non-clerk employees like Complainant
performing such duties. When given the opportunity to change crafts,
and become a regular employee of the clerk craft, Complainant declined.
Nonetheless, the AJ determined that the record is clear that throughout
2008, Complainant continued to be accommodated on a standby basis with
make-work tasks within her restrictions when they were available.
While Complainant was being accommodated with standby, make-work,
Complainant met with the Sacramento District Reasonable Accommodation
Committee. After the meeting, the Agency conducted a search to determine
if a vacant, funded position was available within the District that
Complainant could perform with her restrictions. The search was not
successful and Complainant offered no evidence indicating that such a
position was available or, if such a position were available, that it
could be restructured to meet Complainant’s physical limitations.
As to Complainant’s reprisal-based claim, the AJ determined that
Complainant had presented no evidence that the Agency’s legitimate,
nondiscriminatory reasons for its actions were pretextual. As a result,
the AJ found that Complainant had not been discriminated against,
retaliated against, or denied reasonable accommodation as alleged.
The Agency subsequently issued a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ failed to fully analyze the
pretextual nature of the Agency’s articulated reasons. Specifically,
Complainant challenges the Agency’s contention that the collective
bargaining agreement prohibited her from being accommodated in certain
jobs. Further, Complainant maintains that the Agency failed to engage
in the interactive process and that there were positions to which that
she could have been reassigned. Accordingly, Complainant requests that
the Commission reverse the final order.
ANALYSIS AND FINDINGS
Decision without a Hearing
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.
Upon review of the record, the Commission determines 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 Commission concludes that, even assuming all facts
in favor of Complainant, a reasonable fact finder could not find in her
favor, as explained below. Therefore, no genuine issues of material
fact exist. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. § 1630. In order to establish
that Complainant was denied a reasonable accommodation, 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 Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”).
Under the Commission’s regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the Agency can show
that accommodation would cause an undue hardship. See 29 C.F.R. §§�
�1630.2 (o) and (p). The Commission shall assume without deciding
(for the purposes of this decision) that Complainant is a qualified
individual with a disability.
Upon review of the entire record in this case, the Commission
finds that Complainant has failed to show that the Agency denied
her reasonable accommodation in violation of the Rehabilitation Act.
The Officer-in-Charge (OIC) confirmed that Complainant was accommodated
in her limited duty job with administrative and clerk duties within
her restrictions. ROI, at 198. However, pursuant to the collective
bargaining agreement, employees in the carrier craft could not have
modified job offers which included clerk craft work. Id. at 197.
Further, the Agency conducted evaluations, and it was revealed that
there was not enough limited duty work for all of the limited duty
employees in the Sacramento District. Id. As a result, limited duty
city carriers who were unable to perform their core duties could no longer
perform clerk craft work or administrative work on a regular basis. Id.
All post offices and stations were further informed that if no work was
available for a limited duty employee within their restrictions in their
craft, they were to be placed on standby time in an area of waiting,
and wait there until work was available within their restrictions. Id.
OIC stated that Complainant was informed she could no longer perform clerk
craft duties and administrative duties as indicated on her limited duty
job offer. Id. As a result, beginning September 19, 2007, Complainant
was instructed to choose a place of waiting to sit in until work was
available within her core craft as a carrier. Id.
OIC noted that on October 26, 2007, the Postmaster placed Complainant in
a 204B supervisor detail assignment at the Hammer Ranch Station; however,
this was a temporary detail, and on December 10, 2007 she was returned to
the Stockton Post Office. ROI, at 198. The record indicates that the
Agency conducted a search for a more permanent position consistent with
Complainant’s restrictions; however, a position was not available.
OIC maintained that Complainant was nonetheless accommodated with
available duties within her restrictions including going through the
edit books and doing route adjustments. Id.
The Commission notes that Complainant is entitled to an effective
accommodation, but not necessarily the accommodation of her
choice. Complainant has not offered any evidence that the various
accommodations granted to her were ineffective. Although Complainant
contends that positions were available to which she could have been
reassigned, Complainant has not identified an actual vacant, funded
position within her restrictions that she could have performed at the
relevant time, and it is her burden to do so. Moreover, the Commission
notes that Complainant rejected the opportunity to change crafts where
more work opportunities were available. ROI, at 200. The Commission
notes 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. U.S. Postal Serv., EEOC Appeal No. 01A21682 (July 29,
2003); EEOC Enforcement Guidance: Workers Compensation and the ADA, EEOC
Notice No. 915.002 at 21 (Sept. 3, 1996). Accordingly, the Commission
finds that Complainant has not demonstrated that she was denied reasonable
accommodation.
Hostile Work Environment
Finally, to the extent that Complainant is alleging that she was
subjected to a hostile work environment, the Commission notes that
harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion, or prior
EEO activity is unlawful, if it is sufficiently severe or pervasive.
Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998);
Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994).
After a review of the record, the Commission finds that the incidents
alleged do not constitute discriminatory harassment. The Commission
concludes that Complainant did not prove that she was subjected to conduct
sufficiently severe or pervasive to create a hostile work environment and
that she also failed to prove that the Agency's actions were unlawfully
motivated by her protected classes. Accordingly, Complainant has not
shown that she was subjected to a discriminatory hostile work environment.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 (Nov. 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
August 3, 2011
Date
2
0120101332
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120101332