0120083692final
06-28-2012
Lovetta Brown, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Lovetta Brown,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120083692
Hearing No. 550-2008-00222X
Agency No. 1F-946-0017-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 18, 2008 decision 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. The Agency adopted the decision of the EEOC Administrative Judge (AJ) finding no discrimination.
BACKGROUND
In her complaint, Complainant alleged that the Agency discriminated against her on the bases of disability (bilateral carpal tunnel syndrome, right DeQuevains, left and right shoulder tendonitis, neck pain and right medial lateral epicondylitis) and reprisal for prior protected EEO activity when Complainant was issued a Notice of Removal, dated December 12, 2005, with an effective date of January 19, 2006.1 In her affidavit, Complainant stated her belief that the Agency would never treat her fairly and would continue to find reasons and methods to cause her harm. She also stated that the only resolution that she believed to be fair was for the Agency to grant her full retirement with complete benefits and compensatory damages. Id. at 595.
After receipt of the Report of Investigation (ROI), Complainant requested a hearing before an AJ. The Agency filed a motion for a decision without a hearing (summary judgment). Complainant did not file a response to the Agency's motion for summary judgment. On August 8, 2008, the AJ granted the motion and found no discrimination.2
Complainant began working for the Agency in September 1976 as a clerk. In September 1985, Complainant sought medical attention for a work injury. The Office of Workers' Compensation Programs (OWCP) accepted Complainant's claim in February 1986, for bilateral carpal tunnel syndrome, right DeQuevains, left and right shoulder tendinitis, neck pain and right medial lateral epicondylitis.3 In October 2003, Complainant took off work for carpal tunnel surgery on both hands and it appears that she did not return to work until in June 2008, after having surgery in November 2003 and February 2004. Report of Investigation (ROI) at 120, 490.
In January 2005, the Agency notified the United States Postal Inspection Service about concerns that Complainant was performing work in the private sector while being unable to perform her assigned duties with the Agency. ROI at 694. The Inspection Service thereafter conducted an investigation that found that Complainant working and being paid as a part-time traffic school instructor, most recently in Sacramento. Id. at 697-699, 700. The investigator observed Complainant driving and carrying baskets without any apparent difficulty and driving for over 40 minutes. Id. at 698-699. The investigation did not result in any disciplinary action being issued to Complainant. The record indicates that Complainant held a part-time job as a traffic school instructor teaching 4 to 8 hours a day for three times a week, at most. ROI at 122. It is not clear whether Complainant stopped working as a traffic school instructor in late 2005 or whether she was terminated. ROI at 106, 122. Complainant also appears to have obtained a real estate license in May 2005, and worked in a real estate office in Elk Grove, California. Id. at 107. Complainant worked in the real estate office between 1 to 4 hours daily and appears to have been working as a real estate agent at least through August 2006. Id. at 122, 128. She had been living in Elk Grove since approximately May 2002. Id. at 108.
Complainant received workers' compensation benefits continuously from 2003 until in 2005 when her benefits were terminated. ROI 116-117. In a decision issued in May 2005, the Department of Labor's Office of Workers' Compensation Programs (OWCP) disallowed Complainant's claim after determining that the light duty position offered to Complainant was suitable for Complainant. In its decision, the OWCP noted that Complainant's physician who had performed the carpal tunnel surgeries had released her to modified duty with work restrictions on June 10, 2004, that the Agency had offered Complainant employment as an FTR Clerk, modified, effective August 3, 2004, that the position was consistent with her physician's restrictions but that Complainant rejected the offer on August 18, 2004, stating that the offer conflicted with her most current medical limitations. The decision also reflects that because Complainant had appealed a prior, unrelated workers' compensation decision to the Employee Compensation Appeals Board (ECAB) there was a delay in determining suitability for the job offer. Complainant appealed the May 2005 OWCP decision.
In a decision, dated April 10, 2006, the May 2005 OWCP decision was set aside with the decision maker determining that the earlier decision had relied upon an earlier medical report that was stale in light of the current restrictions by the surgeon. The surgeon had added the restrictions that Complainant could not work in cold conditions, that she could not drive over 30 minutes in an 8-hour shift and could not reach above her shoulders. Id. at 714.
In her decision, the AJ assumed that Complainant had established a prima facie case of disability but found that the Agency had provided reasons for its issuance of the Notice of Removal. Specifically, the AJ found that Complainant failed to submit a proper request for leave in response to a March 9, 2005 letter and had been absent without leave since February 15, 2005. The AJ also found that because the Agency had satisfied its burden of production, Complainant had to show pretext. The AJ found further that Complainant had failed to show that the Agency's articulated reason was pretextual and also found that Complainant had not shown that the Agency's time and attendance policy was applied differently to her.
Regarding retaliation, the AJ noted that Complainant had filed prior discrimination complaints and that her EEO activity was known to Agency officials involved in her removal. The AJ found that Complainant failed to establish a causal connection between her protected activity and the removal, noting that Complainant's last complaint was closed on June 2, 2005, and the removal letter was not issued until December 2005. The AJ also found that Complainant failed to proffer competent evidence establishing that she was treated less favorably or that employees who had not engaged in protected activity were treated more favorably regarding Agency application of its policies for absenteeism. In finding no discrimination, the AJ noted that the issue was not whether the Agency had provided a reasonable accommodation to Complainant but whether Complainant's removal was unlawfully motivated.
The AJ's decision reflects that the Agency had provided Complainant with many opportunities to work and had been exceedingly flexible with Complainant's ever changing restriction and limitations, and had expended considerable effort to return Complainant to a suitable position following a pre-arbitration settlement, dispelling any inference of discrimination or a retaliatory motive.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when the AJ 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. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). An AJ should not rule in favor of one party without holding a hearing unless the AJ 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 AJ 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).
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).
A complainant must initially establish a prima facie case by demonstrating that complainant 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). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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 v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996).
The prima facie inquiry may be dispensed with where the agency has articulated legitimate, nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
Because this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
Upon review, the Commission finds that the grant of summary judgment was proper. Complainant has failed to proffer sufficient evidence to establish that a genuine issue of material fact exists such that a hearing on the merits is warranted. Specifically, the Commission finds that the investigative record was adequately developed; there were no genuine issues of material fact; and there were no findings of fact made by weighing conflicting evidence or assessing witness credibility. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.
Complainant's arguments on appeal do not undermine the AJ's determination that, even assuming all facts in her favor, a reasonable fact finder could not find in her favor. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. Complainant was issued a Notice of Removal because she failed to provide required documentation as requested by the Supervisor of Distribution Operations (SDO) to the SDO concerning her leave status. That Complainant has filed discrimination complaints does not immunize her from removal. The record supports the conclusion that Complainant was absent from work and had not provided the requested documentation and therefore the Agency could properly remove her. See Hobson v. Dep't of Health and Human Serv., EEOC Petition No. 03A10011 (Nov. 11, 2001)(evidence insufficient to show that petitioner removed because of her disability rather than based upon her poor performance evaluation, her failure to follow the agency's leave requesting policy, and her failure to follow direct orders).
Complainant failed to submit a proper request for her leave to the SDO. Although the record contains a March 14, 2005 Form 3971, Request for or Notification of Absence, in which Complainant checked a box for "Other" under type of leave, she left blank the section of the form concerning the reason for her incapacitation, which included incapacitation for duty by a work injury. ROI at 742, Exh. 5. Complainant did not indicate that she had submitted the Form 3971 to the SDO. In his affidavit, the SDO stated that Complainant had not returned to work and that she had been on extended absence without leave (AWOL). He stated that he sent Complainant a letter in March 2005, requiring that she submit documentation to substantiate her absence but that she did not provide medical documentation to him to substantiate her need for her absence and that he did not receive any paperwork from Complainant or anyone else. ROI at 666. The SDO also stated that Complainant never contacted him and that he kept receiving printouts from Enterprise Resource Management System regarding corrective action that needed to be taken regarding Complainant's attendance. He also stated that for a period of time Complainant was in his pay location and then from August to November 2005, Complainant was not in his pay location. Id. at 665. The SDO stated that Complainant's name appeared on his pay location again in December 2005. We accordingly find that the Agency articulated a legitimate, nondiscriminatory reason for the issuance of the Notice of Removal and Complainant has failed to show that its reason was pretextual. Proving pretext requires that the complainant show that discriminatory reasons more likely motivated the agency, or that the agency's proffered explanations are not credible. Complainant has not shown that the Agency was motivated by discriminatory animus when it issued the Notice of Removal.
Also, the Rehabilitation Act is designed to put individuals with disabilities on equal footing with non-disabled people in regards to the hiring, promotion, and discharge decisions of the federal government, but not to insulate them from disciplinary actions which would be taken against any employee regardless of the employee's status. See Wilber v. Brady, 780 F. Supp. 837, 840 (D.D.C. 1992).4
Construing the evidence in the light most favorable to Complainant, the evidence does not preponderate that discriminatory or retaliatory animus was a factor in the Agency's actions. Even were we to assume that Agency officials lied, Complainant has failed to link the lie to a discriminatory animus. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry this burden.
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 decision, 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 (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 (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
6/28/2012
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2005, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
2 The record indicates that Complainant filed a grievance regarding her removal in January 2006. The AJ held the hearing in abeyance during the grievance process. A Regional Prearbitration Settlement discloses that as a result of settlement in January 2008, Complainant was to return to duty at the Oakland Processing and Distribution Center to her regular tour of duty and was to be provided with a return-to-work date after she was given an updated medical from her treating physician. Complainant was to be given a job offer based on the medical limitations provided by her treating physician. ROI at 140.
3 It appears that Complainant may have been terminated by the Agency in 1995 but reinstated in 2000. Report of Investigation at 58, 120. It also appears that Complainant may have been away from work intermittently thereafter until October 2003 when she was away from work until June 2008. Id. at 120.
4 The Commission notes that Complainant has been before the Commission previously in other appeals. In Brown v. U.S. Postal Serv., EEOC Appeal No. 01941136 (Oct. 20, 2004), Complainant alleged that the Agency had discriminated against her on the bases of disability (bilateral carpal tunnel syndrome, tendinitis), race, sex, and reprisal when the Agency placed her on leave without pay status and failed to place her in a position commensurate with her limitations. After a hearing, the AJ found no discrimination, although it was found that Complainant had at least established that she was regarded as having a disability, noting that she had a record of carpal tunnel syndrome and tendinitis but concluded that the Agency had not discriminated against Complainant. In Brown v. U.S. Postal Service, EEOC Appeal No. 01A30626 (May 11, 2004), Complainant alleged that she was subjected to a hostile work environment on the bases of disability (carpal tunnel syndrome, lateral epicondylitis) and reprisal when she was not allowed work within her restrictions; that Agency inaccurately stated that she had refused all job offers and that she was denied meaningful work with upward mobility. After hearing, the AJ concluded that although Complainant has established that she was an individual with a disability, she failed to establish that she was a qualified person with a disability.
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0120083692
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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