0120120225
06-28-2013
Aaron T. Strong, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Aaron T. Strong,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120120225
Hearing No. 530-2010-00234X
Agency No. 4C-190-0107-09
DECISION
Complainant filed an appeal from the Agency's 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 pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES 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 when the Agency denied him work with his restrictions from August 9, 2009, until December 5, 2009.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Olney Station in Philadelphia, Pennsylvania. Complainant had been employed as a City Carrier at the Olney Station for over 15 years. City Carriers deliver and collect mail on foot or by vehicle in a prescribed area and maintain professional and effective public relations with customers. Report of Investigation (ROI), Exhibits 1. City Carriers may be required to carry mail weighing up to 35 pounds in shoulder satchels or other equipment and to load or unload containers of mail weighing up to 70 pounds.
On September 20, 2007, Complainant accepted a modified assignment casing mail that required two hours of standing, intermittent lifting of up to 20 pounds, and intermittent reaching above the shoulders. In April 2009, Complainant was restricted from lifting more than 20 pounds continuously and 70 pounds intermittently. Additionally, Complainant was restricted from walking more than 2.5 hours per day.
On December 31, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and disability when, from August 9, 2009, through December 5, 2009, the Agency denied him work within his restrictions.
In an investigative affidavit, Complainant stated that he was not accommodated for his work-related injury, although management accommodated the non-work related injuries of other employees. Complainant stated that, during the relevant time period, he performed all the carrier duties of route 2012, except that he was limited to three or 3.5 hours1 of street work. Complainant stated that he could perform collections, which involved taking mail from "blue boxes" and bringing it back to the station.
Complainant stated that the Agency discriminated against him from August 9, 2009, through December 5, 2009, when it did not provide him with work, although two female employees (C1 and C2) who did not have work-related injuries were provided work. Complainant stated that C2 was allowed to work collections even though her injury was not work-related, and C1 was assigned to work collections when she was prevented from carrying mail.
The Supervisor of Customer Services (S1) stated that Complainant was able to carry his assigned route for three hours, but that normal street time was 6.5 hours. S1 further stated that Complainant had a limited-duty assignment. S1 further stated that Complainant was provided with a van because he complained that driving over bumps caused him pain when he was in the long-life vehicle (LLV).
S1 stated that on the days Complainant was not assigned collections, he was not assigned for various reasons, including Complainant not leaving the office in time for him to return to start collections at noon, Complainant turning down the assignment, and Complainant taking leave during collections. S1 stated that she also assigned Complainant to work on Express Mail.
S1 also stated that Complainant was paid by the Office of Workers' Compensation Program (OWCP) for any time lost when he did not work eight hours. S1 stated that Complainant returned to full duty in February 2010.
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 AJ. Complainant timely requested a hearing. On April 29, 2011, the Agency submitted a motion for a decision without a hearing in its favor. Complainant did not oppose the Agency's motion for a decision without a hearing.
AJ's Decision
On August 31, 2001, the AJ issued a decision without a hearing, in which she found that Complainant failed to prove that he was subjected to unlawful discrimination. Specifically, the AJ found that Complainant failed to prove that he was a qualified individual with a disability because the record revealed that Complainant could not perform the essential functions of his carrier position with or without a reasonable accommodation. The AJ further found that Complainant failed to establish a prima facie case of sex or disability discrimination. The AJ concluded that not being assigned more collections was not an adverse action and noted that Complainant was paid by the OWCP for any time that he did not work. The AJ further found that there were no similarly-situated female or non-disabled comparators who were treated more favorably than Complainant under similar circumstances.
The Agency subsequently issued a final order fully adopting the AJ's findings. Complainant does not raise any arguments on appeal; 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). 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). 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, 519 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
For purposes of analysis, and without so finding, we assume that Complainant is a qualified individual with a disability and has established a prima facie case of disability and sex discrimination. Nonetheless, we find that the Agency provided legitimate, non-discriminatory reasons for not assigning Complainant collections during the relevant time period. Specifically, S1 stated that she could not assign Complainant collections every day because he sometimes did not return from his route in time for collections, sometimes rejected the assignment, or was on leave. Complainant did not rebut the Agency's non-discriminatory reasons for its actions. Therefore, no reasonable fact-finder could conclude that the Agency's explanations were pretext for unlawful discrimination.2
Further, to the extent that Complainant maintains that he was denied a reasonable accommodation when he was not assigned collections, the Agency maintains that Complainant was unavailable to work collections or rejected the assignment during the relevant time period. Complainant has not rebutted the Agency. Moreover, during the relevant time period, Complainant received compensation for an entire eight-hour workday, even when he did not actually work a full day. Additionally, Complainant was provided work within his restrictions. As such, no reasonable fact-finder could conclude that Complainant provided evidence that shows he was denied a reasonable accommodation. Consequently, we find that the AJ properly found no discrimination.
CONCLUSION
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
June 28, 2013
Date
1 We note that in his affidavit, Complainant initially asserted that he was limited to 3.5 hours of street work, but later asserted that he was limited to three hours of street work. Affidavit A. We further note that he again averred that he was restricted to 3.5 hours of street work later in his affidavit.
2 We note that a decision without a hearing is proper if a party fails to establish any essential element of his case on which he bears the burden of proof. Celotex, 477 U.S. at 323.
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0120120225
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120225