0120122240
10-19-2012
Mary L. Kelly, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Mary L. Kelly,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120122240
Hearing No. 471-2011-00099X
Agency No. 4J-480-0021-11
DECISION
Complainant filed an appeal from the Agency's March 29, 2012 Final Order 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 Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Family Medical Leave Act (FMLA) Coordinator at the Agency's Southeast Michigan Customer Service District facility in Troy, Michigan. On February 28, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (anxiety, depression) when:
On January 10, 2011, Complainant was reassigned from her FMLA Coordinator position and subsequently required to complete seven on-line training courses and a three-day FMLA training course.
At the conclusion of the investigation, the Agency provided Complainant 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. When Complainant did not object, the AJ assigned to the case granted the Agency's December 27, 2011 motion for a decision without a hearing. The AJ issued a decision without a hearing on March 26, 2012.
In her Decision, the AJ found that the material facts were not in dispute. Specifically, the AJ found the undisputed evidence showed that Complainant's supervisor, S1, was unaware of Complainant's mental impairments at the time of the events that precipitated the instant complaint. The AJ further found that Complainant's second level supervisor, M1, was unaware of Complainant's mental impairments and unaware of any medical restrictions Complainant had that impacted her work. The AJ found no dispute that on February 10, 2010, the Agency received a notice from the Department of Labor concerning alleged violations of the FMLA that occurred in the processing of FMLA requests, including seven FMLA cases processed by Complainant. The AJ noted that by the end of March 2010, Complainant had a back log of over 100 FMLA cases to process and that Complainant received a Letter of Warning on March 31, 2010, for failure to follow instructions when she failed to submit a plan of action to address the growing backlog of cases. Complainant, the AJ noted, was on leave from April 1, 2010 through December 31, 2010, when her healthcare provider deemed it necessary for Complainant's well-being. The AJ found that when Complainant returned to work, she was detailed to a non-FMLA position and required to take training courses (seven online courses and a three-day FMLA course) as a condition of her return to FMLA duties.
The AJ found that Complainant failed to present a prima facie case of disability discrimination because she failed to show that the Agency officials responsible for reassigning Complainant and for requiring that she complete specific training before returning to her FMLA duties were aware of her disability. The AJ found the officials (S1 and M1, together with S2, an additional official present during discussions of Complainant's return to duty) were aware that Complainant had been on extended leave, but that none of them had received medical information specifying Complainant's condition. The AJ found that Complainant did not present evidence that she was discriminated against based on a perceived disability.
The AJ further found that even if Complainant had established a prima facie case of disability discrimination, the Agency articulated legitimate, non-discriminatory reasons for its actions. Specifically, the AJ found no dispute that Complainant was not removed from her position, but placed instead on a detail pending completion of the specified training. The AJ further found that the Agency's reasons included the large backlog of cases to which Complainant was assigned and her performance issues prior to her departure on extended leave, as well as the ongoing investigation by the Department of Labor concerning seven of Complainant's cases. The AJ noted that Complainant's supervisors stated that the specified training was intended to help Complainant become more efficient in the processing of FMLA requests and to avoid Agency liability for FMLA violations. The AJ found that Complainant did not present evidence that the Agency's reasons for its actions were a pretext to mask discrimination.
Additionally, the AJ found that none of the employees Complainant identified as being similarly situated to her, but treated better than she was treated, were valid comparators. The AJ noted that E1, E2, and E3 did not report to S1, as Complainant did. E4, the AJ noted, reported to S1 and S2, but E4 did not have the performance issues that Complainant had. On the contrary, the AJ observed that E4 was specially tasked by S2 to address the accumulated backlog of cases assigned to Complainant during her extended leave and that E4 did so, with help, within two weeks. The AJ found that Complainant did not present any evidence that employees without disabilities were treated preferentially. The Agency subsequently issued a Final Order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her 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. 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).
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 that the AJ properly issued her Decision without a hearing. We assume, without so finding, that Complainant is an individual with a disability. We find, as did the AJ, that Complainant failed to identify any similarly situated employees, without disabilities, who were treated better than she was treated under similar circumstances. Specifically, we find the undisputed evidence shows that E1, E2, and E3 did not report to the same supervisor as Complainant, did not hold the same or similar positions as Complainant, and did not have the performance issues that Complainant experienced. We find no dispute that Complainant was involved with seven FMLA requests being investigated by the Department of Labor and we find the Agency reasonably required Complainant to complete FMLA training before resuming her FMLA duties. We find that none of the employees Complainant identified as receiving preferential treatment had experienced a similar backlog in their assigned work and they did not have their work product under investigation. We find the material facts are not in dispute and that Complainant did not present evidence that she was discriminated against based on her disability.
CONCLUSION
We therefore 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
October 19, 2012
__________________
Date
2
0120122240
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122240