0120061879
11-30-2007
Renee L. Rose, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Renee L. Rose,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01200618791
Hearing No. 320-2005-00257X
Agency No. 4F-590-0023-04
DECISION
On January 23, 2006, complainant filed an appeal from the agency's January
5, 2006, 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant
worked as a Part Time Flexible Clerk at the Bozeman, Montana facility.
On October 26, 2004, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of disability (sleep apnea)
when, effective August 1, 2004, she was removed from the agency for
failure to meet the qualifications of her position/scheme.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. When complainant did not object, the AJ assigned
to the case granted the agency's November 9, 2005 motion for a decision
without a hearing and issued a decision without a hearing on December
14, 2005.
In her decision, the AJ initially stated that she incorporated the
statement of undisputed facts contained in the agency's Motion for Summary
Judgment, and that she adopted those facts as her findings. The AJ noted
that complainant did not submit any disputed facts, nor did she dispute
or controvert the agency's statement of facts. The AJ then found that
complainant failed to establish she was an individual with a disability
pursuant to the Rehabilitation Act, noting that complainant did not show
that the limitations resulting from her sleep apnea condition were of
permanent or long term duration. The AJ then found that complainant
failed to establish a prima facie case of disability discrimination,
noting that the agency did not have knowledge of her sleep apnea until
after the notice of removal was issued on July 1, 2004. The AJ further
found no evidence suggesting that disability discrimination motivated
any of the agency officials' actions. The AJ concluded with a finding
of no discrimination. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that she was
subjected to discrimination as alleged.
Complainant has presented no new arguments on appeal. The agency requests
that we affirm the final order. 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 EEOC Management Directive 110,
Chapter 9, � VI.B. (November 9, 1999). (providing that an administrative
judge's "decision to issue a decision without a hearing pursuant to
[29 C.F.R. � 1614.109(g)] will be reviewed de novo"). 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. Department of Defense, 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). We find
that this record contains no genuine issues of material in dispute,
and therefore, the AJ properly issued 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) she is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) she 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 her 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.
Assuming complainant is an individual with a disability under
the Rehabilitation Act, and that she otherwise established a prima
facie case of discrimination, the agency has articulated legitimate,
nondiscriminatory reasons for complainant's removal. Specifically,
management stated that on June 21, 2004, complainant failed to meet
the qualifications of her position as a PTF Distribution Clerk in
the Bozeman Post Office when she failed the 59715 scheme training.
The agency further states that Bozeman is purely a delivery unit so it
is an employment requirement in the Bozeman Post Office for all PTF's
to be scheme qualified. Management also stated that failure to qualify
on assigned schemes at any time during one's career is cause for removal
from the agency.
In an attempt to establish pretext, complainant states that her doctor
faxed a letter to management on July 26, 2004 (several weeks after
complainant was notified of her impending removal) indicating that she
needed 30 days of medical leave due to severe sleep apnea. Complainant
contends that management did not consider this medical documentation.
Complainant also contends that two other employees were treated more
favorably as to the scheme testing. As to the male comparator (MC), she
states that he was allowed to work without passing the scheme training.
Management has responded however, that MC transferred-in on the proviso
that he would be inserted into any opening in the Carrier craft when it
became available. Management further states that knowing that such an
opening was expected in the near future it would have been poor business
rationale to squander limited training budget hours on scheme training
for which MC would soon have no use. Complainant also asserts that a
female comparator (FC) was authorized to go on sick leave for two weeks
after she failed the test, and her period for re-taking the test was
then extended by two weeks. Management's response is that FC received
her Notice of Termination while she was already on sick leave, which
required that she be absent from work. Management explains that scheme
failure termination criteria require that the trainee be given the chance
to test once each scheduled day during their 30-day advance termination
notice period. Management states that since the employee could not
be there to avail herself of that opportunity, her termination date
was extended to allow her to be scheduled after her return and to take
daily tests, if she chose to do so. Management further noted that FC and
complainant both enjoyed the same extension of training hours to nearly
double the usual span, and that both of them were extended the benefit of
a split scheme, allowing for simpler study and absorption. Ultimately,
both FC and complainant were issued Notices of Termination for failure
to successfully pass scheme qualifying testing.
We find that complainant has not provided any persuasive evidence that
the decision to terminate her was motivated by discriminatory animus
based on her disability. After a thorough review of the record, we
AFFIRM the final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 30, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120061879
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120061879