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noted that she considered that claim withdrawn.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