0120112442
08-06-2012
Sharlene C. Garcia, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Sharlene C. Garcia,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120112442
Hearing No. 480-2009-00615
Agency No. 4F-913-0025-09
DECISION
Complainant filed an appeal from the Agency's February 18, 2011 Final Order concerning her 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 Limited Duty Passport Clerk at the Agency's Van Nuys Post Office facility in Van Nuys, California. On April 20, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic/Native American), sex (female), disability (unspecified), and in reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. The Agency reassigned Complainant from a Clerk position to a Carrier position on December 9, 2008; and
2. Following reassignment, the Agency refused to allow Complainant to work until December 22, 2008.
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.
By order dated February 2, 2011, the AJ severed Complainant's complaint, insofar as it is based on disability, from Complainant's claims based upon race, sex, and reprisal. The AJ observed that an Agency official charged with reviewing the medical records of employees in limited or light duty positions, reviewed Complainant's medical documentation. It was this review, a part of the Agency's National Reassessment Program, the AJ noted, that initiated the other actions described in Complainant's complaint. In his Order, the AJ found that Complainant's claim of disability discrimination falls within the pending class action, McConnell, et al. v. U.S. Postal Service, Agency Case No. 4B-140-0062-06. Thus, the AJ dismissed Complainant's hearing request with respect to her disability claim and ordered the Agency to preserve all records pertaining to Complainant's disability claim for the AJ assigned to hear the McConnell class complaint.
Over Complainant's objections, the AJ assigned to the case concurrently granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on February 2, 2011.
In his Decision, the AJ found that the material facts were not in dispute. Specifically, the AJ found no dispute that Complainant was originally hired by the Agency has a letter carrier and that because of an injury she sustained in 1999, Complainant was assigned until December 2008, to work at the Van Nuys Post Office as clerk where her primary duty was processing passport applications. The AJ found no dispute that until implementation of the National Reassessment Program (NRP) commenced, Complainant's most recent medical documentation was dated August 21, 2008. That documentation the AJ noted, described the physical duties of the clerk position that Complainant was then performing, and indicated that Complainant's physician did not note any restrictions for Complainant with regard to those duties as of that date.
N1, an Agency official conducting the NRP for the district where Complainant worked, sent requests to Complainant's physician asking if Complainant was able to work as a letter carrier without restrictions, the AJ observed. The AJ noted no dispute that N1's requests went unanswered. Complainant, the AJ found, learned that N1 had sent requests to her physician without her knowledge and Complainant informed her supervisor, S1, that she would file an EEO complaint against both S1 and N1 for sending the requests. On November 4, 2008, the AJ found, Complainant also notified the Van Nuys Postmaster, P1, that she would file an EEO against all Agency officials who abused their authority in her eyes. The AJ observed that N1 determined that Complainant did not have medical documentation on file with the Agency that prevented her from performing the letter carrier duties and accordingly, N1 recommended to P1 that Complainant be reassigned to a letter carrier position. The AJ observed no dispute that after consultation with additional Agency personnel, Complainant was reassigned by P1 to a letter carrier position on November 22, 2008. On December 9, 2008, Complainant, the AJ found, informed S1 that she could not perform carrier duties. Neither party disputed, the AJ found, that S1 explained to Complainant that she did not have current medical documentation restricting her from carrier duties and that she needed to submit such documentation before she would be allowed to return to work. Complainant did so, the AJ noted, but not until December 22, 2008.
The AJ found that Complainant did not identify any similarly situated employees not in her protected classes, who were treated any better than she was treated. The AJ specifically noted that the clerks Complainant identified as being allowed to remain in their limited duty positions each had current medical documentation on file, restricting them from being able to perform the duties of a letter carrier, while Complainant did not. Additionally, of the identified employees (E1, E2, and E3), the AJ noted that E2 was a Hispanic female employee, as is Complainant. The AJ found that Complainant did not establish a prima facie case of discrimination on the bases of race or sex and that Complainant's including E2 in the list of employees she believed to have been preferentially treated undermined Complainant's contentions that discrimination played any role in the Agency's decision.
Regarding her reprisal claim, the AJ found that Complainant established a prima facie case of reprisal discrimination with respect to her reassignment by P1, but not by N1. Specifically, Complainant informed both S1 and P1 that she would file an EEO complaint against Agency officials when she learned of the actions of N1 and the NRP. The AJ found that N1 and P1 were responsible for Complainant's reassignment to a carrier position within a few days thereafter. However, the AJ found that N1 had no knowledge of Complainant's protected activity before N1 recommended that Complainant be reassigned. The AJ found that P1 articulated a legitimate, non-discriminatory reason for reassigning Complainant (claim (1)) to a carrier position, specifically, that at the time P1 reassigned Complainant, she had no medical documentation on file that restricted her from any duty.
Regarding S1's decision to send Complainant home on December 9, 2008, the AJ found no dispute that the Agency's policy was to send an employee home when assigned to work that the employee says she cannot perform due to medical restrictions which the Agency cannot document. S1 was aware, the AJ found, of Complainant's notice to file an EEO complaint against the Agency. Complainant also notified S1, the AJ observed, that she could not perform the carrier duties without risking injury. The AJ found S1 instructed Complainant to not report for work until Complainant provided the appropriate medical documentation, which Complainant ultimately did on December 22, 2008. The AJ found no evidence that the Agency's stated reasons for any of its actions were false and a pretext to mask discrimination on any basis.
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).
As a preliminary matter, we find the AJ properly severed and dismissed from the hearing process Complainant's disability claim. We note on appeal that neither party challenges the AJ's order dismissing that portion of her complaint from the hearing process. We consider that in 2004, the Agency began the development of the National Reassessment Process (NRP), an effort to "standardize" the procedure used to assign work to injured-on-duty employees. In the class complaint, McConnell claims that the Agency failed to engage in the interactive process during the NRP in violation of the Rehabilitation Act. Further, McConnell claims the Agency allegedly failed to reasonably accommodate class members during and after the process.
On May 30, 2008, an EEOC Administrative Judge (AJ) granted class certification in McConnell, et al. v. U.S. Postal Service, which defined the class as all permanent rehabilitation employees and limited duty employees at the Agency who have been subjected to the NRP from May 5, 2006, to the present, allegedly in violation of the Rehabilitation Act. The AJ defined the McConnell claims into the following broader complaint: (1) The NRP fails to provide a reasonable accommodation (including allegations that the NRP "targets" disabled employees, fails to include an interactive process, and improperly withdraws existing accommodation); (2) The NRP creates a hostile work environment; (3) The NRP wrongfully discloses medical information; and (4) The NRP has an adverse impact on disabled employees. The Agency declined to implement the decision and appealed the matter to the Commission. The Commission agreed with the AJ's definition of the class and the McConnell claims, as stated above. Accordingly, the Commission reversed the Agency's final order rejecting the AJ's certification of the class. McConnell, et al. v. U.S. Postal Service, EEOC Appeal No. 0720080054 (January 14, 2010).
We concur with the AJ that Complainant's disability claim is properly subsumed under the McConnell class complaint. Specifically, we find, as did the AJ, the Complainant's complaint concerns Complainant's allegation that the Agency subjected her to discrimination on the basis of disability, when the incidents described in claims (1) and (2) occurred. We note that Complainant's medical records were reviewed as part of the Agency's NRP. We note that the McConnell class includes claims that the NRP fails to provide a reasonable accommodation, fails to include an interactive process, and improperly withdraws existing accommodation. As Complainant's complaint concerns a claim that as a result of the NRP she was reassigned to a position that violated her medical restrictions, after which she was sent home until she provided further medical documentation, we find Complainant's claim of disability discrimination is properly subsumed within the McConnell class action.
In the instant case, we find the AJ properly issued his decision without a hearing. We find no dispute that Complainant was working as a clerk in December 2008, and that her medical documentation dated August 21, 2008, returned her to full-time duty with no restrictions. We further find no dispute that when Complainant was reassigned to a letter carrier position, she informed S1 that she was unable to perform the letter carrier duties safely and that S1 instructed her to leave work until she could provide documentation. The record confirms that as soon as Complainant provided current medical documentation, she was returned to work. 1
We find no evidence that other similarly situated employees, not in Complainant's protected classes were treated better than Complainant was treated.
We further concur that viewing the evidence in the light most favorable to Complainant, that the material facts surrounding Complainant's reprisal claim are also undisputed. The Agency does not dispute that S1 and P1 were aware of Complainant's protected activity. Even so, we find the Agency articulated legitimate, non-discriminatory reasons for its actions. Specifically, we find no evidence that other employees, not in Complainant's protected classes, were treated differently than Complainant. We find nothing in the record indicates that S1's reasons for sending Complainant home or P1's reasons for reassigning Complainant to letter carrier work were a pretext for discrimination or were in any manner motivated by Complainant's protected activity.
CONCLUSION
We AFFIRM the Agency's Final 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
August 6, 2012
__________________
Date
1 The record further shows that after grieving the Agency's decision to send her home, Complainant and the Agency resolved the grievance by reimbursing Complainant for all lost pay and paying to Complainant an additional $1,500 in compensation. In addition, Complainant was returned to a clerk position at a different post office.
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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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