0120114085
11-05-2012
Michael J. Lutz, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Michael J. Lutz,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120114085
Hearing No. 471-2010-00063X
Agency No. 4J-481-0023-03
DECISION
Complainant filed an appeal from the Agency's September 29, 2011, final order concerning his equal employment opportunity (EEO) complaint. He alleged 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Post Office facility in Ann Arbor, Michigan.
On February 21, 2003, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (back impairment), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when1:
1. On or around January 13, 2003, the Postmaster denied Complainant's request for a limited duty assignment; and
2. On an unspecified date, the Agency denied Complainant the merit pay which he believed had accrued to him (while he was serving as a Postmaster) and prior to his demotion and the Agency did not provide him with an opportunity to appeal the decision.
There is a long procedural history in this matter. The incidents were the subject of a prior settlement agreement and litigation. Of note, the Complainant filed an appeal before the Merit Systems Protection Agency (MSPB) regarding his down grade from postmaster to mail handler. The MSPB upheld the demotion and found no reprisal. In Michael J. Lutz v. United States Postal Service, EEOC Petition No. 032010003 (December 3, 2009), we concurred with the final decision of the MSPB finding no discrimination. Additionally, in Appeal No. 0120093390 (December 3, 2009) we found that Complainant's appeal to the MSPB only dealt with his demotion and remanded the instant claims for further processing.
The record shows that the Agency requested that Complainant undergo a Fitness for Duty Examination. The FFDE found Complainant fit for duty without restrictions, except glasses. The Agency ordered Complainant to return to work . Although Complainant objected to the findings of the Agency physician, Complainant did not get a third opinion. The responsible decision maker relied on the FFDE that provided that Complainant was able to return to work.
On March 4, 2003, Complainant returned to work, but he injured himself that day. He then requested a reasonable accommodation for his injury. He filed a Office of Workers' Compensation claim on March 6, 2003. He accepted a limited duty job on March 14, 2003 and worked until April 11, 2003, which was the last day Complainant was physically present at the Ann Arbor Post Office.
At the conclusion of the investigation of the two allegations of the reinstated complaint, the Agency provided Complainant with a copy of the investigative file and Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the case determined that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision without a hearing on July 18, 2011.
The AJ assumed for purposes of her decision that Complainant was an individual with a disability. The AJ noted that Complainant admitted that he could not perform the functions of the Mail Handler position and that the Mail Handler position was his official assigned position when he requested a light duty assignment on January 13, 2003. The Agency denied the request at that time because the Postmaster concluded that Complainant did not submit medical documentation sufficient to document the request. The AJ reasoned that Complainant admitted that he could not perform the essential functions of the job duties of a Mail Handler because of his limitations which he said included lifting, pushing and working outside in the cold. In addition, the AJ considered the evidence that the Agency denied the request because the facility had no funded temporary light duty assignment available within Complainant's stated restrictions. The AJ found that that the Agency was entitled to judgment on all of the claims.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, 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). See also EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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 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). 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 Def., EEOC Appeal No. 01A24206 (July 11, 2003).
On appeal, Complainant contends that the AJ erred in entering summary judgment because the AJ mischaracterized his allegations and because he did not understand Complainant's issues, the AJ applied the wrong legal theory and overlooked disputed issues of material fact. He contends that there is an issue as to whether Complainant was able to perform the functions of a Mail Handler and that the Agency failed to engage in the interactive process to determine if there was a suitable alternative position to which he could be transferred. Further, Complainant maintains that the Agency's proffered reason for not honoring his request for a limited duty assignment was because of his prior EEO activity that closed in 1998.
Title VII at Section 717(a) requires that all employment actions be made free from discrimination, including sex discrimination and reprisal. In a reprisal claim, a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The Commission adheres to the rule that adverse actions need not qualify as "ultimate employment actions" or materially affect the term and conditions of employment to constitute retaliation. Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
The record does not show that women were treated any better with regard to the issues pending before us. The record also shows that he had filed an EEO complaint against Agency management but this occurred more than four years earlier. The record also reflects that Complainant's prior EEO activity was against different management officials who claim no knowledge of his prior EEO activity.
Complainant must first establish his prima facie claims to shift the burden to the Agency to rebut the presumption established by the prima facie case by articulating a legitimate, nondiscriminatory reason for its actions. While the Agency's burden of production is not onerous, it must nevertheless provide a specific, clear, legitimate and individualized explanation that provides an opportunity for Complainant to satisfy his ultimate burden of proof of pretext.
A review of the record reveals that it is undisputed that the Agency hired Complainant to be a Mail Handler. Complainant acknowledged that he was unable to perform the duties of a Mail Handler, which was the only position to which he was assigned at the time of the incidents at issue. It was undisputed that Complainant did not identify any alternative positions which were available and funded at the subject facility. In short, Complainant did not identify any available alternatives which he could be permanently transferred. The undisputed record also shows that the Agency's stated reason for not granting his request was that his documentation was deemed insufficient.
For purposes of our analysis, we will assume that Complainant is an individual with a disability and that he established the elements of his prima facie case of sex discrimination and reprisal.
We also find that the current record is adequate to render a judgment based on the record. The undisputed record shows why Complainant's requests for a limited assignment and merit pay were not granted. Most significantly, it is clear who made the decisions. The Postmaster denied the request for light duty for two stated reasons: 1) the documentation was not adequate; and 2) there were no available positions into which to transfer Complainant that would meet his restrictions. The merit pay was denied because in December 2002, Complainant received an unacceptable merit evaluation and had been downgraded out of a management position. Complainant admitted that he had no evidence that his disability played any role in the denial of his merit pay. There is no evidence that there reasons are a pretext for sex discrimination or reprisal.
Moreover, no credibility determinations are needed to resolve whether or not Complainant's prior EEO activity was a factor. The EEO activity occurred years earlier and, as stated above, the record shows that there were no available funded positions and Complainant provided no evidence that there were.
Reviewing the record as a whole, we find that the undisputed evidence supports the final action. The evidence does not create any genuine issue of material fact, warranting a hearing.
CONCLUSION
Therefore, we AFFIRM the Agency's final action.
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 tends 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
November 5, 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 2003, 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.
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0120114085
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114085