0120070491
01-15-2010
Sandra A. Wade, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sandra A. Wade,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070491
Hearing No. 532-2006-00058X
Agency No. 4C-430-0123-05
DECISION
On October 29, 2006, complainant filed an appeal from the agency's
October 5, 2006 final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to
29 C.F.R. � 1614.405(a).
ISSUES PRESENTED
On appeal, the issues presented are (1) whether the record was adequately
developed for summary disposition; and (2) whether complainant's claims
of race and sex discrimination should have been addressed separately or
as a combination of factors.
BACKGROUND
The record reveals that complainant worked as a carrier technician for
the agency before sustaining a work-related injury in 1997 and other
injuries afterwards. A carrier technician provides job instruction to
newly assigned carriers and delivers mail on foot or by vehicle whenever
a regularly assigned carrier is absent.
Complainant was eventually referred to the Office of Workers' Compensation
Programs (OWCP) Vocational Rehabilitation Program and was assigned
a vocational rehabilitation counselor. The vocational rehabilitation
counselor developed a plan to help complainant obtain suitable work within
her medical limitations. The plan called for complainant to train as an
accountant or account clerk. Complainant signed the plan on September
17, 2003, and earned an associate degree in accounting after two years.
Complainant averred that in September 2005, she requested that the
agency reasonably accommodate her by reassigning her to a limited duty
position within the clerk craft. However, on September 19, 2005,
the agency issued to complainant a notice of separation because (1)
complainant was continuously absent from duty for more than one year
while on the periodic rolls of OWCP; and (2) the agency believed that
complainant was unlikely to return to perform the duties of her former
position in the near future.
On December 8, 2005, complainant filed an EEO complaint alleging
that she was discriminated against on the bases of race (Black), sex
(female), and disability (sprained/strained upper arm and shoulder,
Carpal Tunnel Syndrome, tendonitis of shoulder, disorders of bursae
and tendons in shoulder region, herniated disk) when the agency failed
to assign complainant to a limited duty or modified job position and
instead issued a notice of separation on September 19, 2005.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The agency filed a motion for a decision without
a hearing. The AJ assigned to the case determined that the complaint
did not warrant a hearing and, over complainant's objections, issued a
decision without a hearing on September 19, 2006. Assuming, arguendo,
that complainant was an individual with a disability, the AJ found that
complainant was not a qualified individual with a disability because
complainant could not perform the essential functions of a carrier
technician, with or without an accommodation. As for the possibility
of reassigning complainant to another position, the AJ found that the
record indicated there were no appropriate vacant and funded positions
available for complainant for which she was qualified. Finally, the AJ
determined that complainant failed to establish prima facie cases of
race and sex discrimination. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that (1) the record was inadequately
developed for summary disposition because the AJ failed to permit
complainant to engage in the proper amount of discovery when the AJ
denied complainant's motion to compel discovery on timeliness grounds;
and (2) the AJ erred in determining that complainant failed to establish
a prima facie case of race and sex discrimination.
STANDARD OF REVIEW
The Commission reviews de novo the AJ's legal and factual conclusions,
and the agency's final order adopting them. 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 the Commission is free to accept (if accurate)
or reject (if erroneous) the factual conclusions and legal analysis of
the AJ and the agency. 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
Development of Record1
The Commission must first determine whether it was appropriate for the
AJ to have issued a decision without a hearing on this record. 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). Unlike a civil employment discrimination trial in federal
court, an EEOC hearing is not strictly judicial in nature; it is
also a quasi-investigatory exercise and is specifically designed as
"an adjudicatory proceeding that completes the process of developing
a full and appropriate record." EEOC Management Directive (MD-110)
(November 9, 1999), at 7-1, 7-6 to 7-8; 29 C.F.R. � 1614.109(a).
On appeal, complainant contends that the record is inadequately developed
to determine whether complainant was denied a reasonable accommodation
when the agency failed to provide a limited duty or modified job
assignment for her disabilities and instead issued a notice of separation
on September 19, 2005.
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodations for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p).
To establish that complainant was denied a reasonable accommodation,
complainant must show that: (1) she is an individual with a disability,
as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual
with a disability, pursuant to 29 C.F.R. � 1630.2(m); and (3) the agency
failed to provide a reasonable accommodation. See EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002)
("Enforcement Guidance").
The term "qualified individual with a disability," with respect to
employment, is defined as a disabled person who has the skill, educational
background, and work experience required for a position held or desired
and who, with or without a reasonable accommodation, can perform the
essential functions of the position. 29 C.F.R. � 1630.2(m). The term
"position" is not limited to the position held by the employee, but also
includes positions that the employee could have held as a result of job
restructuring or reassignment. See Van Horn v. United States Postal
Service, EEOC Appeal No. 01960159 (October 23, 1998).
A complainant with a disability must request a reasonable accommodation
by letting the employer know she needs an adjustment or change at work
for a reason related to a medical condition. Id. at 8. After receiving
a request for reasonable accommodation, the employer should engage in an
informal process with the individual with a disability to clarify what the
individual needs and identify the appropriate reasonable accommodation.
Id. at 11. A modification or adjustment is reasonable if it appears to
be feasible or plausible, and the employer may choose among reasonable
accommodations as long the chosen accommodation is effective at removing
the workplace barrier that is impeding the individual with a disability.
Id. at 4, 18.
With each request for reasonable accommodation, the employer must
determine: (1) whether the accommodation is needed, (2) if needed, whether
the accommodation would be effective at removing the workplace barrier,
and (3) if effective, whether providing the reasonable accommodation would
impose an undue hardship. Id. at 18, 49. If a reasonable accommodation
turns out to be ineffective and the employee with a disability remains
unable to perform an essential function, the employer must consider
whether there would be an alternative reasonable accommodation that
would not pose an undue hardship. Id. at 49. If there is no alternative
accommodation, then the employer must attempt to reassign the employee
to a vacant position for which she is qualified, unless to do so would
cause an undue hardship. Id.
Although the record contains the standard job description of complainant's
former position as a carrier technician, the record in this case
does not contain evidence of other positions complainant could have
held as a result of job restructuring or reassignment, much less the
essential functions associated with those positions. For instance,
while the manager of injury compensation claims in his affidavit that
complainant could not perform the "core duties of [complainant's]
bid assignment" even with assistive devices or equipment, the record
contains no description of the actual duties or physical requirements
of positions in the clerk craft. Furthermore, the record does not show
what positions were in fact vacant. The Commission concludes that the AJ
failed to see that the factual record was sufficiently developed before
granting summary judgment. See Adams v. Department of Homeland Security,
EEOC Appeal No. 0120054463 (August 31, 2007).
On remand, the AJ should direct the agency to supplement the record with
(1) the descriptions and requirements of positions, including those
related to accounting, that complainant could have held with the agency
as a result of job restructuring or reassignment,2 and (2) any vacancy
announcements for these positions, during the period when complainant
sought a limited duty or modified assignment.
Prima Facie Case
On appeal, complainant maintains that the AJ erred in finding that
complainant failed to establish prima facie cases of race and sex
discrimination. In her affidavit, complainant, an African-American
female, listed six coworkers who complainant believed were similarly
situated, yet were treated more favorably than complainant because of
their race and sex when the agency granted them either light duty or
modified job assignments to accommodate their disabilities. Three of
the listed coworkers were Caucasian males, two were Caucasian females,
and one was an African-American male.
The AJ determined that complainant failed to establish a prima facie case
of race discrimination because one of the similarly-situated coworkers
identified by complainant, the African-American male, was the same race
as complainant. Similarly, the AJ determined that complainant failed to
establish a prima facie case of sex discrimination because two of the
similarly-situated coworkers identified by complainant, the Caucasian
females, were the same sex as complainant.
The Commission finds that the AJ's decision improperly addressed
complainant's sex and race claims separately. We have recognized
that when a complainant claims race and sex bias, it is necessary to
determine whether the agency discriminated based on the combination
of factors, not just whether it discriminated against persons of the
same sex or the same race. Miller v. Nat'l Aeronautical Space Admin.,
Request No. 05950292 (January 20, 1996) (citing Lam v. Univ. of Hawaii,
40 F.3d 1551 (9th Cir. 1994); Jeffries v. Harris Cty. Comm. Act. Ass'n.,
615 F.2d 1025 (5th Cir. 1980) (discrimination can exist against a Black
female even if it does not exist against Black males or White females).
The Commission finds that complainant has argued, in essence, a case of
"sex plus" discrimination; that is, the agency treated complainant,
an African-American female, less favorably that it treated Caucasian
females and all males.3
CONCLUSION
After a careful review of the record, the Commission VACATES the final
agency order and remands the complaint for a hearing in accordance with
this decision and the order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Cleveland Field
Office a request for a hearing within 15 calendar days of the date this
decision becomes final. The agency is directed to submit a copy of
the complaint file to the EEOC Hearings Unit within 15 calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below
that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file
a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action."
29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 15, 2010
Date
1 In addition to the inadequacy of the record discussed in the text,
infra, the Commission also notes that the record on appeal does not
contain any pre-hearing documents or motions.
2 In her affidavit, complainant averred that she could perform duties
that did not require "the use of cervical and right shoulder," such as
rewrapping, returning to sender, spreading mail, answering the telephone,
delivering Express Mail, checking in carriers, generating reports,
and performing computer work.
3 The Commission notes, however, that the AJ's error in treating
complainant's race and sex claims separately only relates to the
establishment of a prima facie case, not whether complainant met her
ultimate burden of proof.
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0120070491
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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