0120110140
08-30-2012
Axel R. Lugo, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Axel R. Lugo,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120110140
Hearing No. 510-2009-00322X
Agency No. 4H-335-0024-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 27, 2010 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales and Service Distribution Associate at the Agency's Florence Villa Station in Winter Haven, Florida. In early-2008, Complainant sought accommodation for lower back problems related to an injury he sustained during military training exercises in 1996. Complainant could not perform heavy lifting and requested that he be allowed to alternate between sitting and standing to lessen pain in his lower back. In February 2008, the Agency provided Complainant temporary light duty work, but requested that Complainant provided updated medical documentation. At the time, Complainant's medical documentation only stated that Complainant had a 15-pound lifting restriction. Subsequently, Complainant successfully bid on a position with more sedentary work in November 2008.
Complainant's bid position required Address Management System (AMS) training. Complainant initially received on-the-job training and was scheduled to attend a formal AMS training in Tampa, Florida on November 7, 2008. The Agency later cancelled Complainant's attendance at the training. Complainant was scheme-trained and was needed to process mail on the training day as the Agency had insufficient scheme-trained clerks available. The training was not rescheduled.
In late-November 2008, Complainant requested and was granted light duty. During most of the time period around November 22, 2008 through December 8, 2008, Complainant was out on sick leave or leave without pay. Management did not allow Complainant to return to work until he provided sufficient medical documentation. Complainant submitted documentation; however, it conflicted with his previous documentation. The Agency requested that Complainant submit documentation clarifying his prognosis and restrictions. Complainant went out again on medical leave from December 31, 2008 to February 3, 2009. Complainant submitted medical documentation stating that he could return to work on February 5, 2009, with restrictions of no bending, squatting, or lifting over 15 pounds.
In February 2009, Agency management referred the matter to the District Reasonable Accommodation Committee (DRAC). Complainant disputed the Agency's referral to the DRAC arguing that he was not disabled. In March 2009, the Agency placed Complainant in a window services position in accordance with his medical restrictions. Complainant's schedule changed to 8:30 a.m. to 5:30 p.m. On March 25, 2009, Complainant's position was eliminated pursuant to a union grievance settlement, and Complainant and other employees became unassigned regular employees.
On March 9, 2009 (and amended on May 10, 2009), Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), disability, and in reprisal for prior protected EEO activity when:
1. On November 7, 2008, his scheduled Address Management Systems (AMS) training was cancelled;
2. On or around March 23, 2009, Complainant's bid job was abolished and he became an unassigned regular; and,
3. On or around March 23, 2009, management failed to accommodate Complainant when they did not relocate him within his light duty restrictions and his schedule was changed.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's motion and issued a decision without a hearing on August 20, 2010.
In the decision, as to Complainant's reasonable accommodation claim, the AJ first found that Complainant was a qualified individual with a disability. The AJ found that Complainant expected the Agency to radically restructure his job by eliminating its essential functions to accommodate him, which the Agency was not required to do. In addition, Complainant expected the accommodation or light duty to be provided to him without submitting the required medical documentation. When Complainant did submit medical documentation, it contained conflicting information which required further inquiry which delayed efforts to find him a light duty position. The AJ found that the Agency subsequently provided Complainant light duty work in accordance with his restrictions in window operations. Co-workers assisted Complainant by lifting parcels over 15 pounds. Complainant complained about being given a schedule change and having his distribution duties eliminated, yet the AJ determined this was precisely the position he could work given his medical restrictions. As a result, the AJ found that the Agency had not unlawfully denied Complainant reasonable accommodation.
As to the remaining claims, the AJ found that Complainant had not established a prima facie case of discrimination on the alleged bases or retaliation. Specifically, Complainant failed to show that similarly-situated employees outside of his protected classes were treated more favorably. As a result, the AJ concluded that Complainant had not been discriminated against as alleged. The Agency subsequently issued a final order adopting the AJ's decision. Complainant submitted no arguments or contentions on appeal.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission 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.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. When a party moves for a decision without a hearing, such as the Agency did here, the non-moving party's opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and his arguments on appeal do not undermine the AJ's determination that, even assuming all facts in his favor, a reasonable fact finder could not find in his favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
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. Tx. 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming for the sake of argument that Complainant established a prima facie case of discrimination and reprisal, the Commission finds that the Agency has articulate legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), the Postmaster affirmed that Complainant's AMS training had been cancelled because a major route inspection had been implemented and all distribution employees were needed. ROI, at 159. Further, attempts to quickly reschedule the training were complicated by Complainant's poor attendance, but he did receive on-the-job training. Id. The Postmaster added that formal AMS training provided by the District has since been discontinued. Id.
Regarding claim (2), the Postmaster confirmed that Complainant's bid assignment was abolished pursuant to a Step 3 grievance settlement which required the abolishment of three Level 6 positions. ROI, at 163. Complainant remained in his light duty position until he presented medical documentation returning him to full duty, at which point he became an unassigned regular employee. Id. The Postmaster noted that two other employees' positions were abolished and all contractual procedures were followed. Id. at 164.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
Construing the evidence in the light most favorable to Complainant, the Commission finds that the record is devoid of any evidence that Complainant's protected classes were factors in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant has failed to carry this burden. Accordingly, the Commission finds that Complainant has failed to show that he was discriminated or retaliated against as alleged.
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) he 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 Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2 (o) and (p). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is a qualified individual with a disability.
In the instant case, Complainant states that the former Postmaster granted his only request for accommodation in February 2008, to alternate sitting and standing when necessary. ROI, 105. In March 2009, Complainant's physician stated that Complainant had restrictions which included no bending, squatting, or lifting over 15 pounds. ROI, at 136. The DRAC determined that Complainant could not be accommodated in his distribution assignment as there was insufficient work within his restrictions that he could perform for eight hours. ROI, at 165. As a result, the DRAC recommended that Complainant be placed in a window assignment where he could be accommodated. This work was normally performed between the hours of 8:00 a.m. and 5:00 p.m. and Complainant's schedule was changed accordingly as contractually required. Id. In addition, Complainant was assigned miscellaneous duties he could perform in a sedentary manner, and co-workers assisted with any duties that exceeded his restrictions. Id.
Complainant alleged that this second request for accommodation was forwarded without his knowledge by management as a trick to take away his distribution duties and change his schedule. ROI, at 105. The record reveals that Complainant submitted documentation dated March 5, 2009 and April 7, 2009, indicating that he had restrictions of no lifting over 15 pounds. As a result, the DRAC provided Complainant with window operations and other duties that adhered to his restrictions and to ensure he worked a full 8-hour day. ROI, at 136. While Complainant may not have been offered the reasonable accommodation of his preference, an employer is not required to provide the precise accommodation the employee or applicant wants, so long as the accommodation offered is an effective one under the circumstances of the situation. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Complainant has not offered any evidence that the accommodations provided to him were ineffective. Accordingly, the Commission finds that Complainant has not established that he was denied reasonable accommodation in violation of the Rehabilitation Act.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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 (Nov. 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
August 30, 2012
Date
1 Complainant alleged additional claims, some of which were dismissed by the Agency and some were settled as part of another EEO complaint. At the pre-hearing conference, the parties agreed that claims (1) - (3) were the remaining issues. Complainant does not raise any challenges to the AJ's decision to exclude the dismissed/settled claims from the decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110140
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110140