0120111267
02-04-2011
Timothy L. Hudson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Timothy L. Hudson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120111267
Hearing No. 530-2008-00295X
Agency No. 1C-081-0034-07
DECISION
On March 16, 2009, Complainant filed an appeal from the Agency's February
13, 2009, final order concerning his 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. 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 PS-3 Modified Duty Laborer/Custodian at the Agency's work facility
in New Castle, Delaware. The record reflects that Complainant worked
a limited duty assignment that took into account certain physical
limitations based on a work-related injury. Complainant's four hours
a day of custodial duties consisted of making or assisting in minor
maintenance repairs to building and equipment; assisting fireman-laborer
in firing boiler; operating power-driven equipment; performing general
laboring duties and janitorial duties; operating an elevator; and
stacking supplies. Complainant's three and a half hours of clerical
duties included work on the computer such as looking up parts and
restocking parts in Maintenance Support.
On February 6, 2008, Complainant filed an EEO complaint wherein he
claimed that the Agency discriminated against him on the bases of race
(Black), disability (lower back and extremities), and in reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 and Section 501 of the Rehabilitation Act of 1973 when:
1. From July 2007 and continuing, Complainant was denied overtime and
holiday work opportunities.1
2. Complainant was required to bring medical documentation for unspecified
dates to support his need for a specific lunchtime and subsequently was
denied his requested lunchtime accommodation to take his medication.
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 granted the
Agency's November 24, 2008, Motion for a Decision Without a Hearing
over the objection of Complainant's Opposition dated December 10, 2008,
and issued a decision without a hearing on March 10, 2009.
The AJ found that Complainant failed to establish a prima facie case of
discrimination for the first claim. AJ's Decision at 1. According to the
AJ, Complainant cannot work more than four hours in his laborer duties.
Id. at 2. The AJ noted that Complaint has a split assignment as he
performs clerk craft work in the remaining three and a half hours. Id.
The AJ stated that the Agency cannot assign Complainant clerk craft
overtime work under the collective bargaining agreement. Id. The AJ
stated that the collective bargaining agreement requires that all clerk
craft employees with bid positions be first offered the overtime work.
Id.
The AJ found that Complainant failed to establish a prima facie case of
disability discrimination. Id. According to the AJ, Complainant failed
to establish that he suffers from a disability which may make him eligible
for reasonable accommodation. Id. The AJ stated that Complainant failed
to proffer that he suffers from impairments that substantially limit one
or more major life activities. Id. The AJ also found that Complainant
failed to establish a prima facie case of reprisal. Id. The AJ stated
that Complainant failed to meet the time and manner criteria for a prima
facie case of reprisal. Id.
With regard to claim (2), the AJ found that Complainant failed
to initiate contact with an EEO Counselor in a timely manner. Id.
The AJ noted that the relevant events occurred more than 45 days before
Complainant contacted an EEO Counselor. Id. The AJ further found
that this claim failed to state a claim under Title VII and that it is
moot. Id. According to the AJ, once Complainant provided the requested
documentation, he was afforded the change in lunchtime. Id. The AJ also
found that Complainant failed to establish disability discrimination or
a prima facie case of reprisal for the reasons stated above. Id.
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.
On appeal, Complainant contends that periodically he is allowed to work
overtime and on holidays and therefore he should have been allowed to work
regularly in that fashion since September 30, 2005. Complainant states
that other employees are allowed to earn annual leave by working on
holidays. According to Complainant, he had worked overtime on holidays
for 18 months until he engaged in an argument with the Plant Manager
and the Maintenance Manager. Complainant maintains that he is allowed
to work 9 1/2 hours a day under his functional capacity evaluation
and that he has not declined to work any overtime. Complainant argues
that rather than refusing opportunities to work overtime, he has been
denied opportunities. Complainant states that on August 25, 2007,
he was forced to work more than six hours without lunch or a break and
that he became ill and needed to go to the hospital. Complainant claims
that he requested a week in advance to go to lunch at 11:00 a.m. but
his request was denied. Complainant states that on August 24, 2007,
a Hispanic male maintenance employee requested to go to lunch early
and permission was granted. Complainant also challenges the fact that
separate decisions, including the one at issue in the instant matter,
were issued when he thought that his complaints had been consolidated.
ANALYSIS AND FINDINGS
As to Complainant's argument regarding the issuance of separate decisions,
we observe that the consolidation of complaints that Complainant refers
to concerns the claims that are issue in the instant matter and not
the matter at issue in Agency No. 1C-081-0017-06. Notice of Right to
File for Agency No. 1C-081-0034-07. Agency No. 1C-081-0017-06 is being
adjudicated in EEOC Appeal No. 0120091830. We find no error in the lack
of consolidation of complaints.
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).
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).
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.
As to the claim that was dismissed by the Agency in its partial dismissal
on the grounds of untimely EEO Counselor contact, the record reveals
that the relevant denial of overtime work and holiday work opportunities
allegedly occurred from 2005 through June 2007, yet Complainant did
not initiate contact with an EEO Counselor until January 15, 2008.
Complainant did not raise this issue within the 45-day limitation period
and therefore this claim was properly dismissed as untimely pursuant to
29 C.F.R. �1614.107(a)(2). EEO Counselors Report, p. 245. Even if this
portion of the claim was timely raised because they are not discrete acts
but should be considered together with the timely raised portion of this
claim (something Complainant did not apparently argue to the AJ), we find
that the same logic then discussed herein leads to the conclusion that
Complainant failed to show the dismissed actions were discriminatory.
We assume, arguendo, with regard to claim (1) that Complainant has set
forth a prima facie case of race and reprisal discrimination. With respect
to Complainant's claim of disability discrimination, we shall assume,
arguendo, without making a finding that Complainant is an individual with
a disability. We shall further assume that Complainant has set forth a
prima facie case of disability discrimination. The Agency explained that
Complainant has a split assignment modified duty position to accommodate
his medical restrictions where he works four hours in his laborer duties
and three and a half hours in clerk duties in the maintenance stockroom.
The Agency also explained that Complainant can not work overtime as
a custodian because it would place him above the four hour limit.
According to the Agency, drop day overtime as a custodian cannot occur
because Complainant cannot perform the duties of a custodian for eight
hours a day which he would be guaranteed if he was brought to work.
Additionally, the Agency stated that it could not offer Complainant
overtime in the clerk craft because the collective bargaining agreement
mandates that all clerk craft employees with bid positions be first
offered overtime work. We find that the Agency articulated a legitimate,
nondiscriminatory reason for not issuing Complainant overtime and holiday
work opportunities. Upon review of the record, we find that Complainant
has failed to establish that the explanation articulated by the Agency
was pretext intended to mask discriminatory intent.
With regard to claim (2), the Agency stated that Complainant initiated
contact with an EEO Counselor on January 15, 2008. Id. Complainant
claimed that he was denied permission to have lunch at 11:00 a.m. to take
his medication on certain days in August and September 2007. The Agency's
requested in September 2007, that Complainant submit medical documentation
in support of his desired lunch time. The Agency established standard
break and lunch times for all Tour 2 laborer/custodians in September 2007.
The record reflects that Complainant submitted to the Commission's
Philadelphia Field Office on September 26, 2007, a Motion to Amend his
prior complaint (Agency No. 1C-081-0017-06) to include incidents that
occurred in August and September 2007. Motion to Amend Complaint,
p. 118. The AJ in the Philadelphia Field Office denied Complainant's
Motion finding that these incidents were too far removed in time to
constitute a continuing violation as they occurred more than a year
after the April 13, 2006, incident at issue in the other complaint.
Order Denying Request to Amend, p. 124. The AJ, however, remanded the new
claim to the Agency for pre-complaint counseling. Id. The AJ stated that
the date that Complainant mailed his Motion to Amend, September 26, 2007,
would be considered the date that Complainant initiated counseling. Id.
Therefore we find that Complainant's EEO contact was timely pursuant to
the 45-day limitation period set forth in 29 C.F.R. �1614.107(a)(2).
As to the dismissal of this claim on the grounds of failure to state
a claim, we find that it does state a claim for that portion of the
claim that concerns the denial of the requested lunchtime. The actual
request for medical documentation did not cause Complainant to suffer
personal harm to a term, condition, or privilege of his employment.
Even if it caused harm, we find the Agency's request reasonable
and Complainant failed to show how the request was discriminatory.
The denial of Complainant's requested lunchtime so that he could take his
medication is a matter that involved personal harm to a term, condition,
or privilege of his employment and is effectively an alleged denial of a
reasonable accommodation. We further find that this claim is not moot.
We observe that Complainant requested an award of compensatory damages.
Therefore, it cannot be concluded at this juncture that all effects of
the alleged discrimination have been eradicated.
We shall address this issue now on the merits under the summary
judgment standard. As previously stated, we shall assume, arguendo,
that Complainant is an individual with a disability. We shall
assume, arguendo, that Complainant has set forth a prima facie case of
discrimination under the alleged bases. The Manager, Maintenance, stated
that he standardized the lunchtime for Tour 2 custodians at 12:00 p.m.
Affidavit of Manager, Maintenance, p. 342. According to the Manager,
Maintenance, anyone who wanted to or needed to deviate from the set
lunchtime had to submit medical documentation. Id. The Manager,
Maintenance, stated that he told Complainant's supervisor to have
Complainant submit documentation from his physician. Id. According
to this official, the first note submitted by Complainant from his
physician did not state that Complainant had to take lunch at 11:00 a.m.
Id. at 343. The Agency official stated that Complainant was informed of
this deficiency and the second note from his physician that he submitted
referenced his need to take medicine with food at 11:00 a.m., and that he
was subsequently accommodated. Id. at 344. We find that the Agency has
articulated a legitimate, nondiscriminatory reason for requesting medical
documentation and initially denying Complainant his requested lunchtime.
Complainant attempts to show pretext by stating that on August 24,
2007, a Hispanic male maintenance employee who needed to go to the
bank was permitted to go to lunch early. Complainant states that on
August 25, 2007, a White male maintenance employee was allowed to go to
lunch early after he complained of having a headache from being hungry.
However, we observe that these comparisons are not similarly situated
to Complainant. These comparisons appear to have requested an early
lunch based on isolated, atypical situations. In contrast, Complainant
was requesting to have his regular lunchtime at 11:00 a.m. rather
than 12:00 p.m. We find that Complainant has not established that
the Agency's articulated explanation was pretext intended to mask
discriminatory intent. If claim (2) is analyzed as a reasonable
accommodation claim, we find that Complainant has failed to show that
he was denied an accommodation. The undisputed record indicates that
the Agency properly asked for medical documentation to substantiate
and clarify the desired accommodation/medical necessity and that the
requested accommodation was shortly provided to Complainant.
Upon review of the record, we find that no genuine issue of material
fact exists and that the issuance of summary judgment in favor of the
Agency was appropriate.
CONCLUSION
The determination in the agency's final action that no discrimination
occurred is AFFIRMED.
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
February 4, 2011
__________________
Date
1 Complainant had also claimed that from 2005 through June 2007, he had
been denied overtime and holiday work opportunities. The Agency dismissed
this claim on the grounds that Complainant failed to initiate contact
with an EEO Counselor in a timely manner. AJ's Decision at 1.
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01200991830
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120111267