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.
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0120080270
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013