0120100593
02-16-2012
Reginald Newton, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Reginald Newton,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120100593
Hearing No. 490-2009-00093X
Agency No. 4H-370-0146-08
DECISION
On November 23, 2009, Complainant filed an appeal from the Agency’s
October 29, 2009, 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 Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order which found that Complainant failed
to show that he was subjected to discrimination based on his disability.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was discriminated
against on the basis of his disability (physical) when on or around August
7, 2008, he was involuntary reassigned from the Frayser Station to the
Memphis P & DC (third-street plant) and his duty hours were changed from
5:00 a.m. through 1:30 p.m. to 1:30 p.m. through 10:00 p.m.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a limited duty Mail Clerk, Level 6 at the Agency’s Frayser Station
facility in Memphis, Tennessee. Complainant submitted a Form CA-17,
Duty Status Report, dated August 6, 2008, which indicated that he had
“permanent osteo-arthritis right knee.” His restrictions were listed
as: can lift/carry 10 lbs continuous and 25 lbs intermittently for two
(2) hours per day, sit four (4) to eight (8) hours per day and perform
hour of standing and walking and less than 1 hour of kneeling, bending
and twisting per day.
On September 26-27, 2007, a Function 4 audit was conducted by the
Southeast Area Office. At the time of the audit, the Frayser Station
had ten clerks on Staff. Upon the audit team’s review of the station,
information was inputted into the Automated Workforce Projection System
(AWPS). The AWPS data was then inputted into the Customer Service
Variance (CSV). The report from the CSV revealed that the Frayser Station
had sufficient mail volume to support staffing for only seven clerks.
All clerks were informed of the results of the audit. One of the Frayser
clerks retired and another bided out of the unit. According to the union
contract the excess employees were to be determined first according
to whether they were unassigned in the unit and then by seniority.
Complainant was an unassigned clerk and was, therefore, excessed in
order to get the unit within the balance recommended by the AWPS data.
Management indicated that 23 additional employees received involuntary
reassignments as a result of the Function 4 Audit.
Complainant was offered a position at the third-street plant as a
limited duty mail processing clerk. His duty hours were also changed.
Complainant contends that he along with other disabled employees were
transferred in order to cause them to retire.
On November 10, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of disability when he
was involuntary reassigned from the Frayser station to the third-street
plant; and his duty hours were changed.
At the conclusion of the investigation, the Agency provided Complainant
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. The AJ assigned to the case determined
sua sponte after issuing an Order to Show Cause1 that the complaint did
not warrant a hearing and over the Complainant's objections, issued a
decision without a hearing on October 9, 2009.
The AJ determined that, even assuming arguendo that Complainant was
is a qualified individual with a disability, the Agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that
as a result of the findings of an audit, employees were reassigned
to areas where the work could support the number of employees and
the determination of who would be reassigned was based on seniority.
The AJ found that Complainant offered no evidence which indicated that
the Agency’s articulated reason was pretext for discrimination.
More importantly, however, the Complainant admitted that he had told no
supervisor or management official involved in his reassignment, during the
time in question, that he had a disability. He also admitted that he did
not know if the Postmaster was aware of his disability. The Postmaster
stated that she was not aware of Complainant’s physical condition at
the time the reassignment notice was signed. The AJ found that there
was no evidence in the record which suggested that discriminatory
animus was involved with the decision to reassign Complainant. 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.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that there is no language in the report
that specifically says that clerks needed to be excised. Although the
Function 4 Review report made certain recommendations on how to improve
the operation of the stations and how to make clerks more efficient at
their work, there was no language in the report that recommended the
excessing of clerks. Further, Complainant maintains that the transfer
severally impacted his disability and his job. He explains that at
the third-street plant he has to constantly dodge fork lifts which is
difficult due to his physical limitations. He also maintains that he has
to walk long distances and climb stairs to get access to the break-room
and lockers. Complainant contends that there is a restriction on the
use of elevators.
Complainant also asserts that he is an individual with a disability as
supported by his limited duty position, which was offered to him by his
former supervisor and his Office of Worker’s Compensation claim.
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 Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9, 1999)
(providing that both the Administrative Judge’s determination to issue
a decision without a hearing, and the decision itself, are subject to de
novo review). 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. Dep’t of Def., 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 the instant complaint,
we find that a decision without a hearing was properly issued as there
are no material facts at issue in this case.
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that even if we assume
arguendo that Complainant established a prima facie case of
disability discrimination, we find the Agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that as a result of
the findings of an audit, employees were reassigned to areas where the
work could support the number of employees; and that reassignments were
based on seniority. Therefore, we find that the record indicates that
Complainant was reassigned because he was the clerk with lowest seniority.
We also find that Complainant has not presented nor does the record
support his argument that he was reassigned because of his disability.
The record evidence shows that with respect to the clerk craft, the
three employees that were reassigned were chosen based on seniority.
The record also shows that twenty-three other employees were reassigned
due to the results of the audit. We find that no evidence was offered
which indicates that only employees with disabilities were reassigned. In
fact, Complainant listed only one other employee with a disability, other
than himself, who was reassigned; and that employee was from another
craft. Additionally, we note that the AWPS determined the number of
employees that needed to be reassigned. The record also indicates that
the managers who approved Complainant’s reassignment were not aware
of his disability. We find that Complainant has failed to show that
the Agency’s articulated legitimate, nondiscriminatory reasons were
pretext for discrimination.2
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we AFFIRM
the Agency’s final action which found that Complainant failed to
demonstrate that he was subjected to discrimination as was alleged.
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 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), 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
__2/16/12________________
Date
1 The AJ found that Complainant was less than forthcoming during the
investigation; therefore the Order to Show Cause was issued.
2 With respect to Complainant’s contentions on appeal, wherein
Complainant maintains that he is experiencing hardship in his current
position due to his disability, Complainant is advised that he may
request a reasonable accommodation.
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0120100593
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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