0120113437
10-19-2011
Albert White, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Albert White,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120113437
Hearing No. 480-2010-00184X
Agency No. 1F-901-0287-09
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts, for de
novo review, Complainant’s appeal from the Agency’s April 11,
2011 final order concerning his 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
in a limited-duty assignment as a Mail Processing Clerk at the Agency's
Processing and Distribution Center (LAPDC) in Los Angeles, California.
Complainant’s physical impairments limited his ability to lift or
carry more than 15 pounds. Additionally, Complainant’s work schedule
was limited to eight hours a day, twice a week and four hours a day,
three times a week because of mental impairments. In late 2008, the
Agency decided to eliminate approximately 232 clerk positions due to
declining mail volume. Positions were eliminated based on seniority.
Of the 309 clerk positions, Complainant was ranked lowest in seniority
of all LAPDC clerks.
On February 27, 2009, Complainant received a letter from the Agency
informing him that his position at LAPDC would be eliminated effective
April 25, 2009 due to the decline in mail volume. The letter noted
that these reductions were determined by seniority. In addition, the
letter stated that some clerks would be reassigned and that priority
and preference for reassignments would also be determined by seniority.
Complainant submitted a list of several requested reassignment locations
in the Los Angeles area. On May 19, 2009, the Agency informed Complainant
that he was being reassigned as a full-time carrier at the Bakersfield
Post Office. The facility is approximately 129 miles from Complainant’s
home.
On May 29, 2009, Complainant submitted a request for reasonable
accommodation to the District Reasonable Accommodation Committee (DRAC)
for the Los Angeles District. Complainant requested an assignment
casing mail at any postal operation within the District. The DRAC
considered two vacant positions, Mail Processing Clerk and Sales
and Service Distribution Clerk; however, the DRAC determined that the
essential functions of both of these positions required a work schedule
of 40 hours per week and frequently lifting more than 25 pounds. As a
result, the DRAC concluded that there were no vacant positions available
in the District that Complainant could perform within his restrictions.
Complainant accepted the limited duty assignment to Bakersfield under
protest on July 14, 2009 and subsequently accepted a different limited
duty assignment at Bakersfield on December 21, 2009.
On August 3, 2009, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of disability when,
on or around May 19, 2009, he was informed that he would be excessed
and reassigned to the carrier craft effective June 6, 2009.1
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant’s objections,
the AJ assigned to the case granted the Agency’s motion and issued a
decision without a hearing on May 8, 2009.
The AJ determined that Complainant requested an assignment casing mail
at a facility within the Los Angeles District as an accommodation.
The DRAC identified and considered two vacant clerk positions within
the Los Angeles District as possible accommodations. However,
the essential functions of both positions violated Complainant’s
medical restrictions. Complainant was unable to identify reasonable
accommodations that would permit him to perform the essential functions
of the vacant clerk positions. In addition, Complainant was unable to
identify any other vacant positions within the District that he could
perform within his medical restrictions.
The AJ noted that given the number of positions within the Los Angeles
District, it seemed incongruous that the Agency could not identify a
position that Complainant could perform that was closer to his former
work site. The AJ determined, however, that assignments were made
in accordance with seniority, and Complainant had the least amount of
seniority of any of the clerks at the LAPDC. The AJ noted that it is
unreasonable absent special circumstances for an employer to provide
an accommodation which conflicts with the terms of a seniority system.
The AJ found that there was no evidence of any special circumstances in
the present case. Additionally, the record revealed that at least six
other LAPDC clerks were also reassigned to facilities of great distance
from the LAPDC, including two to the Bakersfield facility. Thus, the
AJ found that there was no evidence that the Agency had discriminated
against Complainant or denied him reasonable accommodation in violation
of the Rehabilitation Act. The Agency subsequently issued a final order
adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing a decision
without a hearing. Specifically, Complainant alleges that the AJ
misinterpreted a material fact as the Agency failed to properly address
his May 2009 request for accommodation. Further, Complainant argues
that the ROI is incomplete. Accordingly, Complainant requests that the
Commission reverse the final order.
ANALYSIS AND FINDINGS
Decision without a Hearing
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which required
a hearing and therefore the AJ's issuance of a decision without a hearing
was appropriate. The Commission concludes that, even assuming all facts
in favor of Complainant, a reasonable fact finder could not find in his
favor, as explained below. Therefore, no genuine issues of material fact
exist. Additionally, the Commission is not persuaded by Complainant’s
appellate arguments that the ROI is incomplete. The record does not
reflect that the investigation of the subject complaint was in any way
one-sided or incomplete. Thus, despite the above referenced arguments,
the Commission determines that the investigation was properly conducted,
and that Complainant has provided no persuasive arguments indicating
any improprieties in the AJ's findings. Under these circumstances,
the Commission finds that the AJ’s issuance of a decision without a
hearing was appropriate.
Denial of Reasonable Accommodation
The Commission notes that the Rehabilitation Act of 1973 prohibits
discrimination against qualified disabled individuals. See 29 C.F.R. §
1630. In order to establish that Complainant was denied a reasonable
accommodation, Complainant must show that: (1) he is an individual with
a disability, as defined by 29 C.F.R. 1630.2(g); (2) he is a qualified
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3)
the Agency failed to provide a reasonable accommodation. See Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement
Guidance”).
Under the Commission's regulations, an Agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the Agency can show
that accommodation would cause an undue hardship. See 29 C.F.R. §§
1630.2 (o) and (p). The Commission shall assume without deciding (for
the purposes of this decision) that Complainant is an individual with
a disability and a qualified individual with a disability.
The Commission finds that Complainant has not established that the Agency
denied him reasonable accommodation in violation of the Rehabilitation
Act. The DRAC engaged in the interactive process with Complainant and
considered positions within the District to which Complainant could be
reassigned, but was unable to find a position within Complainant’s
restrictions. Complainant has not identified an actual vacant, funded
position within his restrictions that he could have performed at the
relevant time, and it is his burden to do so. In addition, the Commission
notes that in U.S. Airways, Inc. v. Barnett, the Supreme Court held that
it was unreasonable, absent “special circumstances,” for an employer
to provide an accommodation which conflicts with the terms of a seniority
system (collective bargaining agreement). 535 U.S. 391 (Apr. 29, 2002).
The Commission finds that Complainant has failed to present any evidence
establishing any special circumstances. Complainant was offered
and accepted a limited duty assignment at the Bakersfield facility.
Complainant is entitled to an “effective” accommodation, but not
necessarily the accommodation of his choice. Complainant has not offered
any evidence that the accommodation offered to him was ineffective.
Thus, the Commission finds that the Agency did not deny Complainant
reasonable accommodation in violation of the Rehabilitation Act.
Further, to the extent that Complainant is alleging disparate treatment
(apart from accommodation), the Commission finds that as discussed above,
the Agency has articulated legitimate, nondiscriminatory reasons for
its actions. Construing the evidence in the light most favorable to
Complainant, the record is devoid of any evidence that discrimination
was a factor in the Agency's actions. At all times, the ultimate burden
of persuasion remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency's reasons were not the real reasons, and
that the Agency acted on the basis of discriminatory animus. Complainant
has failed to carry this burden. Accordingly, the Commission finds
that Complainant has failed to show that he was discriminated against
as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 (Nov. 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, 2011
Date
1 Complainant originally alleged discrimination on the bases of race,
color, sex, age, national origin, and in reprisal for prior protected
EEO activity; however, he subsequently withdrew those bases.
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0120113437
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013