Paul Smith, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.

Equal Employment Opportunity CommissionJan 7, 2009
0120083399 (E.E.O.C. Jan. 7, 2009)

0120083399

01-07-2009

Paul Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.


Paul Smith,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Northeast Area),

Agency.

Appeal No. 0120083399

Hearing No. 520-2007-00481X

Agency No. 1B-012-0008-07

DECISION

On July 25, 2008, complainant filed an appeal from the agency's June

20, 2008 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. The appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final order.

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

as a Parcel Post Distributor (Machine), PS-05,1 at the Springfield,

Massachusetts Bulk Mail Center. On March 1, 2007, complainant filed an

EEO complaint alleging that he was discriminated against on the bases

of disability2 and reprisal for prior protected EEO activity [arising

under the Rehabilitation Act] when:

1. management refused to allow him to work on the holiday schedule,

excluded him from overtime, and required him to update his medical

restrictions; and

2. on December 14, 2006, he was sent home.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. When complainant did not object, the AJ assigned

to the case granted the agency's December 19, 2007 motion for a decision

without a hearing and issued a decision without a hearing on June 11,

2008.

The AJ first noted that during the course of the investigation

complainant disavowed the retaliation claim stating that he was not

alleging retaliation and had no prior EEO activity. Accordingly, the AJ

noted that she considered that claim withdrawn. Next, the AJ found that

complainant cannot perform the essential functions of mail processing.

Additionally, she noted that complainant believes that the agency should

have permitted him to perform the "day-tags"3 function which he had been

performing for many years, on holidays and during overtime.

The AJ then found that complainant failed to establish a prima facie

case of disability discrimination as he failed to establish that he is a

"qualified individual with a disability." The AJ noted that complainant

has not performed the essential functions of his position as Parcel

Post Distributor since September 21, 2006. The AJ then found that had

complainant established a prima facie case he still could not prevail

because the agency articulated legitimate, nondiscriminatory reasons

for actions. Specifically, the agency's reason for denying complainant

the opportunity to perform his usual "day-tags" function on overtime

is that the agency had determined that it is not imperative that this

task be performed on holidays and weekends so it decided not to pay

any employees to perform "day-tags" on overtime. Next, the reason

for requiring complainant to update his medical restrictions was that

his medical condition was in flux and complainant had indicated that

performing the "day-tags" was painful and causing his wrist to swell.

Finally, the reason for sending complainant home was that at the relevant

time, complainant's limitations had been extended to limit his use of both

hands and there was no work available that was within these restrictions.

The AJ found that complainant failed to prove that the explanations

are pretexts for discrimination. The AJ found no discrimination.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that he was subjected to discrimination

as alleged.

On appeal, complainant contends that he was unlawfully denied the

benefits of his employment, and that he was unlawfully sent home because

of disability discrimination.4 In response, the agency contends that

the AJ's decision was correct and well-supported.

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").

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). In this

case, the AJ's issuance of a decision without a hearing was proper.

In analyzing a disparate treatment claim under the Rehabilitation Act,

where the agency denies that its decisions were motivated by complainant's

disability and there is no direct evidence of discrimination, we apply

the burden-shifting method of proof set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village

Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68

(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).

Under this analysis, in order to establish a prima facie case, complainant

must demonstrate that: (1) he is an "individual with a disability"; (2)

he is "qualified" for the position held or desired; (3) he was subjected

to an adverse employment action; and (4) the circumstances surrounding

the adverse action give rise to an inference of discrimination.

Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden

of production then shifts to the agency to articulate a legitimate,

non-discriminatory reason for the adverse employment action. In order

to satisfy his burden of proof, complainant must then demonstrate by a

preponderance of the evidence that the agency's proffered reason is a

pretext for disability discrimination. Id.

We shall assume, but do not find, that complainant is a qualified

individual with a disability under the Rehabilitation Act, who was

denied the opportunity to work overtime and holiday hours, while his

non-disabled colleagues were allowed to work the extra premium pay hours.

Thus, for purposes of this discussion, we assume that complainant has

established a prima facie case of disability discrimination. However,

continuing with the McDonnell Douglas analysis, complainant failed to

present evidence that more likely than not, the agency's articulated

reasons for its actions were a pretext for discriminatory animus.

To the extent that complainant is alleging that he was improperly denied

reasonable accommodation when management refused to allow him to work

on the holiday schedule and excluded him from overtime, we note that the

agency has a duty to make reasonable accommodation to the known physical

or mental limitations of an otherwise qualified applicant or employee

with a disability, unless such covered entity can demonstrate that the

accommodation would impose an undue hardship on the operation of its

business. See 29 C.F.R. � 1630.9(a); see also Spaulding v. United States

Postal Serv., EEOC Appeal Nos. 01982863 & 01991949-53 (Sept. 14, 2001)

(holding that agencies must make reasonable accommodation for qualified

employees to work overtime). The agency however is not required to create

a job as a form of reasonable accommodation. See Castenda v. United States

Postal Serv., EEOC Appeal No. 01951445 (Sept. 18, 1998). Where there is

no overtime work an employee can perform with or without a reasonable

accommodation,5 an agency is not required to "make work" to provide

the employee overtime. See Williams v. United States Postal Serv.,

EEOC Appeal No. 01986160 (June 16, 2000). Here, the agency was under

no obligation to create overtime duties for complainant.

After a careful review of the record, the Commission finds that the

AJ's decision without a hearing was appropriate, as no genuine issue

of material fact is in dispute.6 See Petty v. Department of Defense,

EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the

agency's final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 19848,

Washington, D.C. 20036. 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

January 7, 2009

__________________

Date

1 The record indicates that complainant has worked in limited duty

positions almost continuously since 1996.

2 Complainant stated that he has the following permanent physical

impairments: left and right arm post anterior transposition ulnar nerve;

left shoulder impingement syndrome; left and right arm cubital tunnel

syndrome; left and right forearm lateral epicondylitis; major depression

with anxiety; chronic left medial epicondylitis; and tenosynovitus.

3 "Day-tags" are tags or labels color coded by day (Monday through

Saturday) that clerks and mailhandlers affix to pouches or containers of

mail, which indicate a timeframe for movement through mail processing.

The agency uses these "day-tags" to track and forward mail through the

mailstream as efficiently as possible. Complainant's specific role

which he performed on limited duty, and which he wished to perform on

overtime and on the holiday schedule, was to walk throughout the facility

in order to gather used and discarded "day-tags" and bring them back

to a central location where he would sort and bundle them by day for

further use. Occasionally, the agency would receive new "day-tags"

whereupon complainant would unpack them and re-bundle them.

4 Complainant does not, on appeal, challenge the finding concerning the

agency's request for updated medical documentation.

5 Although complainant states that he could have performed "inquiry cage"

work which was available on overtime, he has not demonstrated that this

work was within his medical restrictions.

6 In this case, we find that the record was adequately developed for

the AJ to issue a decision without a hearing.

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0120083399

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120083399