0120100153
07-31-2012
Gregory W. Johnson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Gregory W. Johnson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120100153
Hearing No. 460-2008-00138X
Agency No. 4G-770-0092-08
DECISION
On July 24, 2009, Complainant appealed the Agency's June 30, 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. The Commission accepts the appeal, under 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUE PRESENTED
Whether an EEOC Administrative Judge erred in issuing summary judgment in favor of the Agency.
BACKGROUND
Before he permanently injured his shoulder, Complainant worked as a full-time City Carrier at the Houston Medical Center Post Office in Houston, Texas. After the injury, he had several physical restrictions, including lifting restrictions. He subsequently accepted an August 10, 2006 offer of modified assignment (limited duty) at the Houston Medical Center Post Office. This offer specified that Complainant would "[m]an the [Automated Postal Center] machine" and assist customers on the telephone. Report of Investigation (ROI), Exhibit (Ex.) 5, at 4. The offer prohibited Complainant from using his right arm for any activity. Id.
In May 2007, the Agency offered him another limited duty assignment, in which he would work as a Mail Processing Clerk at the Houston Processing and Distribution Center. Complainant felt that this offer exceeded his physical restrictions and filed a grievance. On November 1, 2007, the parties settled the grievance, agreeing to the following:
[Complainant] will be returned to his modified assignment of 8/10/06 at Medical Center Station. Management must make every effort to comply with the pecking order in the E.L.M. Sec. 546 and with Article 17 (superseniority rights) before reassigning an injured employee. This will be accomplished w/in 2 pay periods of receipt.
ROI, Ex. 5, at 1.
November 5, 2007: Return to Work
According to Complainant, on November 2, 2007, his supervisor verbally told him to return to work on November 5, 2007. Complainant's affidavit (aff.), at 2. When he arrived at the facility on November 5, 2007, his supervisor allegedly did not allow him to clock in, instructed him to leave, and told him that this decision had been made by the Manager of the facility. Id.
Although Complainant's supervisor did not allow him to resume his job duties on November 5, 2007, the Agency's "Health and Resource Management" department nevertheless processed him as having returned to work on November 5, 2007 and sought to terminate his workers' compensation benefits.
For example, on November 5, 2007, a Health and Resource Management Specialist wrote to a workers' compensation claims examiner:
[Complainant] returned to work on 11/05/07. Be advised that the claimant was notified via letter (copy attached) of the steps to be taken to avoid a potential overpayment status. After a review of the file we've determined an overpayment may exist.
The result of our review of this case revealed the following: Employee returned to work on Limited Duty.
Based on the above information, we are requesting you declare and pursue recovery of
an overpayment if it exists.
ROI, Ex. 6, at 6.
The record also includes a November 5, 2007 letter that the specialist sent to Complainant, stating:
You recently returned to work following your absence due to your job related injury. The Office of Workers' Compensation Programs (OWCP) was notified of this action and
requested to terminate your compensation payments.
ROI, Ex. 6, at 1.
Finally, we note that the Manager of the "Health and Resource Management" department submitted a request for a personnel action, because the department had verified from payroll records that Complainant had returned to work as a modified city carrier on November 5, 2007. ROI, Ex. 10, at 2.
November 19, 2007: First Job Offer for Lobby Director
On November 19, 2007, the Manager of the Houston Medical Center Post Office filled out several forms. He wrote that there was no available work that Complainant could perform as a city carrier at the Houston Medical Center Post Office, because of his physical restrictions on pushing, picking up items, performing repetitive motions. ROI, Ex. 9, at 7. Therefore, the Manager identified the position of Lobby Director as a rehabilitation job assignment for Complainant. ROI, Ex. 9, at 5. As a Lobby Director, Complainant would provide information to customers on completing forms and direct customers to the Automated Postal Center machine. Id.
The Manager indicated that Complainant was currently off duty because he had declined a job offer at a Processing and Distribution Center. ROI, Ex. 9, at 6.
On November 19, 2007, the Manager of the "Health and Resource Management" department conveyed the rehabilitation program job offer to Complainant. In one letter, she explained that Complainant had been in a limited duty status for a long period of time. Since his current medical documents indicated that his condition was permanent (no lifting, no pushing or pulling with right arm, no simple grasping, no reaching above shoulder, no use of right hand), he would not be able to return to his regular duties as a City Carrier. Therefore, the Agency offered to reassign him as part of its Rehabilitation program to a modified clerk position as a Lobby Director at the Houston Medical Center Post Office, effective November 24, 2007.
In a second letter, the Manager of the "Health and Resource Management" department informed Complainant that he had to attend an interview on November 21, 2007, to discuss this permanent job offer. She warned that failure to appear at this appointment could harm his chances for future worker's compensation benefits. ROI, Ex. 9, at 1.
On November 20, 2007, however, a different supervisor wrote to Complainant that he had to return to work on November 23, 2007 and immediately report to his first-level supervisor. ROI, Ex. 8, at 1.
November 21, 2007: Meeting about Lobby Director Job Offer
On November 21, 2007, Complainant attended a meeting with a Health and Resource Management Specialist and a Labor Specialist to discuss the rehabilitation job offer and to have Complainant either accept or reject the offer. According to the specialists, Complainant raised his voice during the meeting and questioned why he was being offered a Lobby Director position when he had just signed a settlement agreement that promised to return him to the limited duty position he held under the August 10, 2006 job offer. The specialists wrote that the interview was eventually stopped due to Complainant's raised voice. He refused to sign the job offer. ROI, Ex. 11, at 1-2.
November 23, 2007: Second Attempt to Return to Work
Pursuant to the November 20, 2007 letter he received, Complainant attempted to return to work on November 23, 2007. But according to Complainant, the Manager of the facility sent him home again, instructing him to return on November 26, 2007. Complainant's aff. at 2.
November 26, 2007: Second Job Offer for Lobby Director and Incident
On November 26, 2007, the Manager of the Houston Medical Center Post Office sent Complainant a second offer of the Lobby Director position. This time, Complainant signed the job offer "under protest." ROI, Ex. 13.
Around noon, he went to the Health and Resource Management department to seek the manager for information and documents for a grievance. According to the Manager of the department, Complainant asked to interview her and her colleagues, but she said it was unnecessary. According to the Manager's account, Complainant replied, "Yes, I will interview you. . . . I will not feel sorry for you at the interview." The Manager testified that she felt this was a threat by Complainant. ROI, Ex. 12, at 1.
December 4, 2007: Incident with Manager of Customer Services Operations
On December 4, 2007, Complainant met with the Manager of Customer Services Operations. According to the Manager, after leaving the meeting, Complainant asked him what was on his watch. He replied that he did not have a watch, but Complainant insisted that he wanted the time on the Manager's watch. The Manager told Complainant that he was disrupting the workroom floor. The Manager felt that Complainant became loud and disruptive and did not follow his instructions. The Manager called the Manager of the facility over. ROI, Ex. 14.
Suspensions
On January 2, 2008, in an unsigned letter, Complainant's first-level supervisor issued a 7-day suspension for yelling during the November 21, 2007 meeting; using a loud voice when speaking to the Manager of Health and Resource Management on November 26, 2007; making the Manager feel threatened. ROI, Ex. 15, at 1-2.
A week later, on January 9, 2008, Complainant's first-level supervisor issued a 14-day suspension for having a "loud tone" and "arrogant" manner on the workroom floor on December 4, 2007; refusing to follow instructions to lower his voice; disrupting the workroom floor; leaving work after the verbal incident without providing acceptable leave documentation. ROI, Ex. 15, at 5-6.
January 15, 2008: Third Job Offer for Lobby Director
On January 15, 2008, the Manager of the Health and Resource Management department offered Complainant a job as a Lobby Director at the "GPO Window Unit," but then rescinded this offer on January 22, 2008. ROI, Ex. 16, at 3-5.
January 29, 2008: Fourth Job Offer for Lobby Director
On January 29, 2008, the Agency offered Complainant a limited duty assignment as a Lobby Director at the North Shepherd Station. This offer was based on an analysis done by Complainant's first-level supervisor on December 27, 2007, when she determined that Complainant's permanent medical restrictions (such as no lifting) prevented him from doing any duties of a letter carrier. Because there were no rehabilitation positions for the clerk craft at the Houston Medical Center Post Office, Complainant needed to be given a rehabilitation program in the clerk craft elsewhere. ROI, Ex. 17, at 2. Complainant again accepted the offer "under protest/duress." ROI, Ex. 17, at 1.
EEO Complaint
On February 6, 2008, Complainant filed an EEO complaint, alleging that the Agency subjected him to hostile work environment harassment on the bases of race (African-American), sex (male), disability (physical impairment), and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. The Manager of the Houston Medical Center Post Office did not allow him to work overtime, while he allowed a female, Hispanic injured employee to work overtime.
2. The Manager of the Houston Medical Center Post Office restricted his access to the ACE system, thereby preventing him from maintaining the Automated Postal Center machine, while allowing a female, non-black worker access.
3. Agency officials prevented him from returning to his old limited duty assignment and instead attempted four times to involuntarily reassign him to other jobs and facilities.
4. His first-level supervisor suspended him for 7 days on January 2, 2008.
5. His first-level supervisor suspended him for 14 days on January 9, 2008.
6. The Agency did not grant his requests for union and EEO representation.
The Agency also dismissed the basis of reprisal, reasoning that Complainant had alleged retaliation due to past union activities. The Agency also dismissed the allegation that Complainant had been denied official time, which it found to be essentially a claim of dissatisfaction with the EEO process.
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.
AJ's Summary Judgment Decision
Over Complainant's objections, the AJ assigned to the case granted the Agency's July 16, 2008, motion for a decision without a hearing and issued a decision without a hearing on June 24, 2009. The AJ first found that Complainant failed to establish prima facie cases of disparate treatment on the bases of race, sex, or disability discrimination.
The AJ found that the two female, non-black employees that Complainant relied on as comparator evidence were not similarly situated to Complainant. Therefore, he could not establish a prima facie case that the Manager of the Houston Medical Center Post Office had treated him differently regarding overtime and the ACE system because of his race or sex.
Even if Complainant had established prima facie cases of disparate treatment, the Agency articulated legitimate, nondiscriminatory reasons for its actions. For the denial of overtime, the AJ found that Complainant's limited duty assignment guaranteed him only 8 hours of work each day. There was no guarantee of overtime. For the restriction to the ACE computer system, the AJ found no evidence that Complainant needed access to this system to complete his duties and that the suspensions were brought because of Complainant's disruptive behavior on the dates in question.
The AJ found that Complainant did not establish pretext because he only presented bare assertions and conclusory accusations and allegations. He did not present evidence that the Agency's actions were discriminatory or its stated reasons were false.
As for the basis of disability, the AJ found that Complainant was not a qualified individual with a disability because he could not perform the essential functions of his bid job, city carrier, with or without an accommodation. Complainant's restrictions prevented him from driving a Postal vehicle, lifting mail, or casing mail. Therefore, he could not perform the essential functions of a city carrier and is not protected under the Rehabilitation Act.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing summary judgment in favor of the Agency, and that he is entitled to an administrative hearing.
ANALYSIS AND FINDINGS
Dismissal of Basis of Reprisal
As a preliminary matter, we find that the Agency erred in dismissing Complainant's allegation that the Agency harassed him in part as reprisal for prior EEO activity. Complainant stated that he did not accept the Agency's offer of limited duty in May 2007 because he believed it exceeded his physical restrictions. But rather than file an EEO complaint, Complainant elected to file a grievance.
The Agency reasons that Complainant's election to file a grievance precludes him from arguing that he engaged in protected EEO activity. While the decision to file a grievance may not be protected activity, the decision to decline a job offer because it exceeds one's physical restrictions can constitute protected EEO activity. We find that Complainant engaged in protected activity when he attempted to secure a work assignment that would accommodate his physical restrictions. And because the allegations of harassment occurred immediately after Complainant settled this matter, we find that he has sufficiently stated a claim of harassment on the bases of reprisal.
Summary Judgment
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 Chapter 9, � VI.B. (November 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 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").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).
The Commission notes that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995). We find that the credibility of the Manager of the Houston Medical Center Post Office is at issue here.
Complainant alleged that his supervisors prevented him from returning to work shortly after signing the settlement agreement on November 1, 2007, and subsequently attempted to involuntarily assign him to other jobs and other locations, as retaliation for his prior EEO activity.
In his affidavit, the Manager of the Houston Medical Center Post Office denied that he had ever offered Complainant a modified job offer. Yet, documents in the record clearly show that
a few weeks after Complainant had resolved the matter involving his prior EEO activity, the Manager wrote on November 19, 2007 that there was no available work that Complainant could do as a city carrier at the Houston Medical Center Post Office, because of his physical restrictions on pushing, picking up items, performing repetitive motions. The Manager identified the position of Lobby Director as a rehabilitation job assignment for Complainant, and on that same day the Agency offered Complainant this very assignment.
Moreover, on several occasions, the Manager of the Houston Medical Center Post Office denied witnessing events that other fellow managers claimed that he was present and witnessed events or disputes involving Complainant.
We also note that there are genuine issues of material fact in dispute. Complainant averred that his first-level supervisor told him to return to work on November 5, 2007. Indeed, Agency documents from the "Health and Resource Management" department indicate that Complainant had in fact returned to work on that date. But when he arrived, he was not allowed to work, and had to wait several weeks to start work in a different job under protest.
In contrast, Complainant's first level supervisor denied instructing Complainant to return to work on November 5, 2007. When he did show up for work on November 5, 2007, she attested that she informed the manager of the facility, who instructed her to remove Complainant from the building.
The circumstances under which Complainant attempted to return to work on November 5, 2007 are material because they have the potential to affect the outcome of the case by raising an inference of a retaliatory motive. If Agency officials universally understood that Complainant was to return to his old limited duty assignment on November 5, 2007, and actually invited him to return to work on that day, then the attempts by the official who had been the subject of the previous EEO-related matter to deny him his official start date, and then actively worked to reassign him to another position a few weeks later, would raise an inference of retaliation.1
Therefore, we find that summary judgment was not appropriate based on this record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission VACATES the Agency's final order and REMANDS Complainant's claims (including the basis of reprisal for prior EEO activity) for a hearing in accordance with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC Houston District Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
_7/31/12_________________
Date
1 In order to avoid fragmentation, we will not address the merits of Complainant's remaining claims at this time.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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