0120100812
07-11-2012
Christopher J. Norman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Christopher J. Norman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120100812
Hearing No. 460-2009-00141X
Agency No. 4G-770-0078-09
DECISION
Complainant filed an appeal from the Agency's October 22, 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 Letter Carrier at the Agency's DeMoss Station in Houston, Texas. On April 6, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and disability (shoulder) when:
(1) On December 13, 2008, Complainant's tour time (duty hours) was changed; and
(2) After Complainant's tour was changed, Complainant was provided with less overtime than other employees.
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 requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on October 14, 2009.
In her Decision, the AJ found the record was adequately developed and complete. The AJ found the material facts were undisputed. Specifically, the AJ found no dispute that Complainant was a Letter Carrier, but that Complainant was unable to carry a mail pouch. Complainant, the AJ noted, had previously had surgery to repair a rotator cuff tear. Neither party disputed that the Agency offered Complainant a side pouch for carrying mail, but Complainant rejected the side pouch as inadequate. The AJ found no dispute that Complainant's duty hours were changed and that after they were changed, he received less overtime.
The AJ found the evidence undisputed that two female carriers to whom Complainant sought to compare himself were not similarly situated to him because they did not have the same limitation as Complainant with respect to carrying a pouch. The AJ found that Complainant did not establish a prima facie case of discrimination for either claim based on sex or disability.
Assuming that Complainant had established a prima facie case of discrimination, the AJ then considered the Agency's explanation that Complainant's duty hours were changed so that he would begin his tour when mail was available for him to carry. The AJ found that Complainant was assigned to a walking route and that the later starting time meant there was more mail on routes that Complainant could carry without wearing a pouch such as apartment mail. The AJ noted that Complainant was unhappy with the change in his starting time because he could not make as much overtime with the changed starting time. Nevertheless, the AJ noted no dispute that Complainant remained on the overtime list after his duty hours were changed and that he did receive overtime. The AJ found that Complainant did not present any evidence that the union officials monitoring the overtime list found any inappropriate use of the list. The AJ found that Complainant did not show that the Agency's reasons for changing his starting time and the resulting change in his overtime assignments were a pretext for discrimination. The AJ found that Complainant further failed to show that the accommodation the Agency offered Complainant was unreasonable (i.e., the side pouch).
The AJ concluded that Complainant was not subjected to sex or disability discrimination as alleged. The Agency subsequently issued a Final Order on October 22, 2009, adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination.
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. 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 he or 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 Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. 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.
In the instant case, we find the AJ properly issued her decision without a hearing. We find the material facts are not in dispute and that after drawing all reasonable inferences in Complainant's favor, Complainant fails to establish he was discriminated against by the Agency. We assume without so finding that Complainant has a disability. We find no dispute that Complainant's tour time (duty hours) was changed by the Agency. There is no claim by Complainant or indication in the record that the change in Complainant's tour time resulted in a violation of his medical restrictions or did not accommodate his claimed disability. The Agency changed Complainant's duty hours in order that he would be able to carry a route within his restrictions. Complainant has not shown that this change in tour time was motivated by discrimination.
Furthermore, there is no dispute that Complainant was still on the overtime desired list after his duty hours were changed. We further find no evidence that Complainant was treated less favorably than similarly situated employees in Complainant's position regarding overtime when his duty hours were changed. We find, as did the AJ, that the female employees to whom Complainant seeks to compare himself are not similarly situated to Complainant. Complainant's tour time was changed to accommodate his restrictions. Nothing in the record shows that the identified female employees had similar restrictions. We further find no evidence to support Complainant's allegation that he received fewer opportunities for overtime than other Letter Carriers who were also scheduled to begin their tour of duty at 9:00 am.
CONCLUSION
We AFFIRM the Agency's Final Order, finding no discrimination.
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
July 11, 2012
__________________
Date
2
0120100812
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100812