0120090253
02-13-2009
Tracy F. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tracy F. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090253
Hearing No. 430-2007-00464X
Agency No. 4K-230-0072-07
DECISION
Complainant filed an appeal from the agency's September 17, 2008 final
action concerning her 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. For the following reasons, the Commission AFFIRMS the
agency's final action.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Rural Carrier Associate at the agency's Luray Post Office facility
in Luray, Virginia.1 On May 1, 2007, complainant filed an EEO complaint
alleging that she was discriminated against on the basis of disability
(Cerebral Palsy) when:
1. From January 30, 2007, to the present, complainant has been
assigned to carrier duties while she is paid at the casual clerk rate,
2. From January 30, 2007 to present, although complainant has
received 40 hours of window training, she is not assigned to window
clerk duties.
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 requested
a hearing. After both parties submitted motions for a decision without a
hearing, the AJ assigned to the case issued a decision without a hearing
on October 20, 2008.2
In her decision, the AJ observed that none of the material facts remained
in dispute and that the parties agreed that no need for a hearing exists.
The AJ found that complainant failed to establish a prima facie case of
disability discrimination. Specifically, the AJ noted that although
complainant was diagnosed with Cerebral Palsy, she states she is not
limited in any major life activity and that her disability does not
impact her ability to perform her job.3 Accordingly, the AJ found that
complainant had not shown that she was a qualified individual with a
disability within the meaning of the Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq.
Nevertheless, the AJ found assuming arguendo that complainant had
established that she was an employee covered by the Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.,
she still failed to identify any similarly situated employees, without
disabilities, who received preferential treatment. Specifically, the
AJ found the employees complainant identified in her complaint were
not similarly situated since they worked in different positions (clerk
craft), at different facilities, under different supervisors, and were
career employees. The AJ noted that the agency asserted complainant was
not needed to work the window during the relevant time. The AJ found
that the agency's reasons for assigning complainant to carry mail and to
not assign her to window clerk duties were not shown by complainant to
be pretext. The AJ therefore found that complainant did not show that
she was subjected to disability discrimination.
The agency subsequently issued a final action on4, fully implementing
the AJ's finding that complainant failed to prove that she was subjected
to discrimination as alleged.
ANALYSIS AND FINDINGS
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 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.
In the instant case, we assume, without so finding, that complainant
is a qualified individual within the meaning of the Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
We find that, in light of the motions filed by the parties and the facts
of this case, that the AJ properly issued her decision without a hearing.
We concur with the AJ that the two employees identified by complainant, E1
and E2, are not valid comparators for complainant under the circumstances.
E1 and E2 work at different locations and they were not casual clerks or
dual position appointees, as complainant was at the time of the events
described in the complaint. Moreover, we find complainant failed to
show that the agency's actions were based on discriminatory animus.
Accordingly, we AFFIRM the agency's final action, finding no
discrimination.
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 (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
February 13, 2009
__________________
Date
1 Complainant was hired as a Rural Carrier Associate and served a dual
appointment as a Casual Clerk.
2 The AJ issued an initial decision on September 11, 2008. Subsequently,
the AJ issued a Decision on October 20, 2008 to correct the name of an
agency official identified in the decision.
3 The AJ also noted that complainant states she did not need and had
not requested an accommodation for her condition. The AJ observed that
complainant's supervisors stated they were unaware that complainant had
any disability.
4 We deem the agency's final action to have fully implemented the AJ's
corrected decision of October 20, 2008.
??
??
??
??
2
0120090253
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090253