0120170554
07-17-2018
Tona C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tona C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120170554
Hearing Nos. 480-2015-00301X, 480-2015-00300X
Agency Nos. 4F-913-0096-13, 4F-913-0060-14
DECISION
On November 14, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 4, 2016, final order concerning her equal employment opportunity (EEO) complaints 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.
ISSUES PRESENTED
The issues presented are: (1) whether the AJ's issuance of two decisions without a hearing was appropriate; and (2) whether Complainant established that the Agency discriminated against her on the bases of race, sex, disability and reprisal, as a result of the allegations set forth herein.
BACKGROUND
At the time of events at issue, Complainant worked as a Sales and Services Distribution Associate (Clerk) at the Agency's North Hollywood-Studio City Post Office facility in Studio City, California. She filed the following two complaints.
Complaint 1, Agency No. 4F-913-0096-13, Hearing No. 480-2015-00301X
On November 4, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), and disability (injury of cervical spine, lumbar disc, and shoulder) when:
1. On August 5, 2013, management provided her with a limited duty job offer that did not adhere to her medical restrictions;
2. After refusing the August 5 job offer, she was instructed to report to work and perform in a limited duty status without having signed a limited duty job offer.
In a November 25, 2013, final decision, the Agency decided to hold Complaint 1, 4F-913-0096-13, in abeyance, finding that it was identical to the matters being considered in a class complaint, Glee Williams v. United States Postal Service, Agency No. 1G-721-0008-12. On appeal to the Commission, we determined that the Agency had failed to provide any information to support its abeyance decision, and as the Agency has the burden of providing evidence to support its final decisions, the matter was remanded to the Agency for further processing. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140745 (April 23, 2014).
Complaint 2, Agency No. 4F-913-0060-14, Hearing No. 480-2015-00300X
On July 24, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (injury of cervical spine, lumbar disc, and shoulder), and reprisal when:
1. On April 1, 2014, she was sent home after refusing to sign an Offer of Modified Assignment (Limited Duty) that she believed violated her medical restrictions; and
2. On or about May 28, 2014, she accepted, under pressure, a Rehabilitation Assignment at the Los Angeles Customer Care Center.
The investigative records in both complaints reveal very similar facts. Complainant's physician submitted medical reports in July and August 2013, and August 2014, listing work restrictions, including:
* No repetitive motions;
* Intermittent lifting of ten pounds;
* Intermittent sitting two hours per day;
* Walking two hours per day;
* Standing eight hours per day;
* Pulling/pushing 30 minutes for Complaint 1 and 1 hour per day for Complaint 2;
* Simple grasping eight hours per day for Complaint 1 and 15 minutes per hour for Complaint 2;
* Bending/stooping one hour per day;
* Intermittent twisting four hours per day;
* Intermittent fine manipulation (including keyboarding) eight hours per day for Complaint 1 and 15 minutes per hour for Complaint 2; and,
* Intermittent reaching above shoulder 30 minutes for Complaint 1 and no reaching above shoulder for Complaint 2.
As a result of these medical restrictions, the Agency offered Complainant modified and limited duty assignments, such as lobby duties on an as needed basis, and window duties, all taking into consideration her medical restrictions. In some instances, Complainant accepted the assignments, and in other instances she rejected the assignments. When Complainant refused to sign job offers, the Agency would send her home, pending her doctor's approval or the Agency's determination of another position that it believed fell within her medical restrictions. The Agency ultimately located a Rehabilitation Assignment at its Los Angeles Customer Care Center. While Complainant referenced several alleged comparison employees, she never presented evidence of how she was treated less favorably under similar conditions.
At the conclusion of the investigations, the Agency provided Complainant with a copy of the reports of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. After the Agency submitted a motion for a decision without a hearing, Complainant objected and both parties filed counter motions, the AJ assigned to the case considered the motions and issued decisions without a hearing on both complaints on September 21, 2016. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In his decisions, the AJ concluded that Complainant failed to establish a prima facie case of disparate treatment discrimination because she presented no evidence of an adverse action on the part of the Agency. In this regard, the AJ concluded that there was no evidence that Complainant was assigned any duties outside of her stated restrictions. The AJ further concluded that Complainant failed to show that the Agency's legitimate, nondiscriminatory reasons for its actions were pretextual. Specifically, the AJ found that the Agency consistently accommodated or attempted to accommodate Complainant's medical restrictions in every assignment.
With respect to Complainant's hostile environment claims, the AJ found that Complainant failed to offer evidence of sufficiently severe or pervasive actions on the part of the Agency that rose to the level of a hostile work environment. Moreover, the AJ concluded that no evidence was presented to show retaliatory animus on the part of the Agency for any of its actions.
CONTENTIONS ON APPEAL
Complainant did not submit a statement or brief in support of her appeal. Alternatively, the Agency reiterates statements made in its Motion For Decision Without A Hearing, arguing, among a number of things, that Complainant failed to show that employees outside her protected classes were treated more favorably and that she cannot show that the Agency's legitimate, nondiscriminatory reasons for its action were pretextual.
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 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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").
ANALYSIS AND FINDINGS
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).
Upon review of the record, we find that there are no genuine issues of material fact presented here. The records have been adequately developed, Complainant was given ample notice of the Agency's motions for decisions without hearings, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such statement, and she was given the chance to engage in discovery before responding. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of decisions without hearings was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming Complainant established a prima facie case of race, sex, disability or reprisal discrimination, there was no showing that the Agency's legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination. The AJ correctly concluded that there was no showing that race, sex, disability or reprisal were a factor in any of the Agency's actions. Here, Complainant made no showing of why the Agency's job offers and duty assignments failed to meet her medical restrictions.
Hostile Work Environment Harassment
To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, because of her race, sex, and disability. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
With respect to Complainant's generalized allegations, there is no showing that she was subjected to unwelcome or physical conduct rising to the level of a hostile work environment. That is, Complainant has not shown sufficiently severe or pervasive events that establish she was subjected to a hostile work environment. We find that the Agency's actions trying to provide Complainant a position within her medical restrictions, were entirely reasonable, with no abusive conduct based on Complainant's protected classes.
Moreover, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment regarding her disparate treatment allegations must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of harassment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000).
Finally, there was no showing of retaliatory conduct on the part of the Agency.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's issuance of a decision without a hearing was proper. We further find that Complainant did not establish harassment/discrimination based on race, sex, disability or reprisal. Accordingly, we hereby AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__7/17/18________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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