Appeal No. 0120130350
09-26-2014
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120130350
Hearing No. 530-2011-00200X
Agency No. 4C-250-0009-11
DECISION
On October 31, 2012, Complainant timely filed an appeal from the Agency's September 27, 2012, final order concerning his 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing, and whether the AJ properly found that Complainant failed to prove that he was subjected to unlawful discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Fort Hill Carrier Annex in Lynchburg, Virginia. In this position, Complainant primarily organized, collected, and delivered mail on foot or by vehicle. On February 16, 2011, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the basis of disability when on November 17, 2010, the Agency denied him overtime and did not equal him on the Overtime Desired List during Third Quarter 2010 (3Q) because of his limited duty status.
In an investigative affidavit statement, Complainant stated that he has Degenerative Arthritis in his knees, which is a permanent condition. He stated that as a result of work injuries in 2006, he is on limited duty. Complainant stated that he continues to perform the core duties of his City Carrier position, but his condition restricts his ability to continuously walk more than three quarters of a mile. Complainant stated that he successfully bid on a route with duties within his restrictions.
Complainant further stated that overtime is available most days, and he signed the Overtime Desired List (ODL) for all periods after November 17, 2010. Complainant stated that overtime was equitably distributed for the Second Quarter (Q2) of 2010, but it was not "equalized" for the Third Quarter (Q3) of 2010. Complainant stated that his disability was the predominant factor in the decision not to equalize overtime, and the Postmaster did not consult with the Supervisor of Customer Services (S1) to verify that he could carry mail on other routes. Complainant further stated that he did not discuss his concerns about overtime with any management officials.
S1 stated that Complainant's bid assignment is an eight-hour assignment; therefore, any overtime must be acquired from another route. S1 further stated that Complainant is capable of walking his bid assignment, but any additional work hours have to be done by mounted delivery because of his restrictions. S1 stated that the 24501 zone that Complainant worked has only four mounted zones out of 18 zones. S1 also stated that Complainant was considered for overtime during Q3 2010, but more likely than not, the overtime available required walking that Complainant could not do. S1 stated that Complainant received overtime if it was available and fell within his limitations, but other limited duty carriers had to be considered for the same overtime opportunities. S1 also stated that Complainant has even refused an eight-hour opportunity of unscheduled overtime.
The Postmaster stated that Complainant's restrictions allow him to walk up to 3,960 feet, and then he has to rest for three hours. The Postmaster further stated that Complainant was considered for equalized overtime in Q3 2020, but Complainant was not always available for the overtime assignments.
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. On July 31, 2012, the Agency moved for summary judgment in its favor, to which Complainant responded in opposition on August 17, 2012. On September 10, 2012, the AJ issued summary judgment in favor of the Agency. The AJ found that Complainant failed to provide any evidence from which it could be concluded that the Agency's legitimate, non-discriminatory explanations for its actions were pretext for unlawful discrimination. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Postmaster failed to equalize the overtime roster, as required by the National Agreement. The Agency requests that we affirm its final order.
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, at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 Chap. 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
Decision without a Hearing
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 Defense, EEOC Appeal No. 01A24206 (July 11, 2003). After a careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing; a decision without a hearing therefore was appropriate.
Disparate Treatment
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
For purposes of analysis, we assume arguendo that Complainant is a qualified individual with a disability and established a prima facie case of disability discrimination. Nonetheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, management stated that Complainant's bid assignment is an eight-hour assignment; therefore, any overtime must be acquired from another route. Management further stated that Complainant received overtime if it was available and fell within his limitations, but other limited duty carriers had to be considered for the same overtime opportunities. Management noted that Complainant is capable of walking his bid assignment, but any additional work hours have to be done by mounted delivery, and the 24501 zone that Complainant works has only four mounted zones out of 18 zones.
Complainant contends that the Postmaster failed to equalize the overtime roster, as required by the National Agreement. However, a violation of the National Agreement is not necessarily the same as a violation of EEO regulations. In this case, Complainant failed to provide any evidence from which it can be reasonably concluded that the Agency's non-discriminatory explanations for its actions are pretext for unlawful discrimination. In so finding, we note that the record reveals that Complainant worked overtime during every pay period in Q3 2010 (July 1, 2010 through September 30, 2010). Consequently, we find that AJ properly found that Complainant failed to prove that he was subjected to unlawful discrimination.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order for the reasons set forth in this decision.
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
September 26, 2014
Date
2
0120130350
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130350