Paul Clark, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 23, 2009
0120080270 (E.E.O.C. Oct. 23, 2009)

0120080270

10-23-2009

Paul Clark, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Paul Clark,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120080270

Hearing No. 480-2006-00399X

Agency No. 4F-920-0054-06

DECISION

JURISDICTION

On October 16, 2007, complainant filed an appeal from the agency's

September 13, 2007, final order concerning his 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 accepted pursuant to 29 C.F.R. � 1614.405(a). For the

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

BACKGROUND

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

worked as a full-time City Carrier at the agency's Yucaipa facility

in California. On September 7, 2005, complainant submitted a request,

via the agency's eReassign website, for reassignment to the Greensboro,

North Carolina District, as a Custodial Laborer in the Maintenance Craft.

On October 3, 2005, the North Carolina District requested documentation

regarding complainant's work history from the San Diego District.

The documents requested included live discipline records, supervisor

evaluation, datakeeper reports (331,334, and 348), training records,

and driving records.

The San Diego District forwarded the records and included a printout of

complainant's Safety and Injury Compensation records, which revealed

a work-related repetitive motion injury on December 1, 2002, and

complainant's attendance records for 2003, 2004 and 2005. In addition

to the records requested, the Human Resource Specialist from the North

Carolina District asked that complainant submit his Notice of Rating

for the Custodial Maintenance examination, the position that he wished

to transfer into.1

Included in the packet to North Carolina was the Supervisor Evaluation.

The supervisor stated that he had supervised complainant for seven months,

and the complainant had no live discipline. He described complainant's

work performance as: "Mr. Clark work[s] at a very methodical pace.

Mr. Clark is capable of casing high volumes of mail. He has a great

attitude and works well along with co-workers [and management]."

In response to the evaluation, the Manager in North Carolina called

complainant's supervisor to discuss the evaluation. He wanted

to determine if complainant's supervisor was attempting to portray

complainant as a better employee than he actually was. Complainant's

supervisor indicated that, during a recent office mail count, complainant

had performed very well and indicated that his delivery on his route

was fast. Complainant's supervisor also indicated that complainant

received daily auxiliary assistance because his route was long and he

was limited to working eight hours per day due to medical restrictions.

Based on this conversation, the Manager of the North Carolina office

determined that complainant was unable to complete his assigned work

without assistance. He also noted complainant's poor leave record as

complainant had only 112.77 hours of sick leave available and none of

it appeared to be FMLA protected.

The Manager of the North Carolina office indicated that based on the

Supervisor Evaluation, the discussion with complainant's supervisor,

and complainant's low leave balance, he denied complainant's reassignment

request. He indicated that complainant's safety, driving, and discipline

records were satisfactory, but his work and attendance records were not.

On December 22, 2005, complainant was sent a letter advising him that

his request had been denied due to his unacceptable work and attendance

records.

Believing that he had been discriminated against, complainant contacted an

EEO Counselor. He filed a formal EEO complaint on May 24, 2006, alleging

that he was discriminated against on the bases of disability (diabetes

and atrial fibrillation) and age (46) when his request to transfer to

the Greensboro, North Carolina Bulk Mail Center was denied.2

At the conclusion of the investigation, complainant was provided a

copy of the investigative file and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing

finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of age discrimination, noting that complainant failed to show that

similarly situated employees not of his protected basis were treated

more favorably.3 The AJ noted that the employee that was allowed to

transfer was five years older than complainant and the other employee

was denied transfer based on a poor attendance record. The AJ concluded

that complainant had failed to demonstrate that he was discriminated

against with regard to his age.

The AJ also determined that complainant failed to show that he was

discriminated against based on disability. The AJ noted that complainant

worked full time and he had indicated that his impairment was controlled

by medications, which enabled him to fully perform his carrier duties.

Complainant's only restriction was that he could not work more than eight

hours per day. Based on this information, the AJ found that complainant

was not an individual with a disability. Specifically, the AJ found that

complainant failed to establish that he had a physical impairment or a

record of a physical impairment that substantially limited a recognizable

major life activity.

Additionally, the AJ found that complainant did not establish that he

was regarded or perceived as disabled because while his supervisors were

aware of his medical conditions, they did not believe that his condition

impaired his ability to perform his carrier duties. Moreover, the AJ

found that the Manager in North Carolina was unaware of complainant's

medical conditions until after he denied complainant's request for

transfer. Therefore, the AJ determined that complainant failed to carry

his burden of proof and establish that there was a genuine material

dispute concerning whether the Manager in North Carolina regarded him

as disabled.

The AJ then concluded that the agency proffered legitimate,

nondiscriminatory reasons for denying complainant's transfer request;

namely, that his request was denied due to his work and attendance

records. In reaching this conclusion, the AJ noted that the Manager

in North Carolina determined after a conversation with complainant's

supervisor that complainant was unable to successfully complete

his assigned work without assistance and found that complainant's

attendance record was unsatisfactory because he had a sick leave balance

of only 112.77 hours out of a possible 2,241 hours,4 with no apparent

FMLA-protected leave.

As such, the AJ concluded that complainant failed to demonstrate by a

preponderance of the evidence that he was discriminated against under

any of his alleged bases. In reaching this conclusion, the AJ found

that the agency had articulated legitimate nondiscriminatory reasons

for its actions and complainant had failed to show that the reasons were

pretext for discrimination. As such, the AJ granted the agency's motion

for summary judgment.

FINAL AGENCY ACTION

The agency's final order implemented the AJ's decision.

CONTENTIONS ON APPEAL

On appeal, complainant contends: that the agency failed to follow its

own transfer request policy; that his sick leave hours should not have

been a determining factor in the transfer; and that the Manager in North

Carolina was aware that he had an impairment because he obtained, as part

of the transfer packet, a printout detailing complainant's work-related

repetitive motion injury on December 1, 2002. Complainant also contends

that had a hearing been conducted in this case, his wife would have

disclosed how this transfer had affected complainant and his entire

family. Complainant maintains that a hearing would have disclosed that

other employees had no problem transferring out of the Yucaipa facility

and it would have shown the many contradictions in management's sworn

affidavits.

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 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").

ANALYSIS AND FINDINGS

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).

The courts have been clear that summary judgment is not to be used as

a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st

Cir. 1975). The Commission has noted that when a party submits an

affidavit and credibility is at issue, "there is a need for strident

cross-examination and summary judgment on such evidence is improper."

Pedersen v. Department of Justice, EEOC Request No. 05940339 (February

24, 1995).

After a careful review of the record, we find that the AJ correctly

found that there were no genuine issues of material fact in this case.

We find that even if we assume arguendo that complainant established

a prima facie case of discrimination as to all bases, the agency has

articulated a legitimate nondiscriminatory reason for its actions,

namely; that complainant's transfer request was denied because of

his work and attendance records. We find that complainant has not

provided any evidence which shows that other employees with similar

work and attendance records were transferred. In fact, the record

shows that an employee whose transfer request was granted was older than

complainant. Further, with respect to complainant's contentions on appeal,

i.e., that the agency violated its own transfer policy when it considered

his sick leave balance, the Commission notes that another employee was

also denied a transfer as a result of that employee's leave record.

Therefore, we find the record shows that the policy was not applied only

to complainant, but was applied to other employees as well. Accordingly,

we find complainant has not demonstrated that the agency's articulated

legitimate nondiscriminatory reasons were pretext for discrimination.

CONCLUSION

After a careful review of the record, including complainant's arguments on

appeal, the agency's response, and arguments and evidence not specifically

discussed in this decision, the Commission AFFIRMS 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

October 23, 2009

Date

1 Complainant received a score of 97.6 on the Custodial Maintenance

examination.

2 A grievance was filed regarding this matter and on March 6, 2006, it

was decided that complainant would be placed on the reassignment/transfer

list for Maintenance Technician in North Carolina, with an effective

date of December 22, 2005.

3 Between October 1, 2005 and January 31, 2006, a total of three requests

for transfer to North Carolina were reviewed. Two requests were denied.

Complainant's request was denied due to his work and attendance records,

and the second request was denied due to attendance. The third request to

transfer was granted but not to the location that had been requested.

4 This possible leave balance is based on the 21.55 years of service

that complainant had completed.

??

??

??

??

7

0120080270

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013