0120112244
01-31-2013
Allen Wilson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Allen Wilson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120112244
Hearing No. 460-2010-00083X
Agency No. 4G-770-0273-09
DECISION
On March 22, 2011, Complainant filed an appeal from the Agency's February 24, 2011, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Limited Duty Clerk at the Agency's Rich Hill Post Office facility in Houston, Texas.
On September 16, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (hip damage and Hernias), age (44), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act of 1967; and Section 501 of the Rehabilitation Act of 1973 when:
1. On June 17, 2009, Complainant was instructed to report to the General Post Office;
2. On August 15, 2009, Complainant was involuntarily reassigned to a position that conflicts with his disability and was informed if he could not perform the duties of a carrier there was no work available for him and;
3. On or around August 25, 2009, he was denied light duty.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case granted the Agency's June 8, 2010, motion for a decision without a hearing and issued a decision without a hearing on February 8, 2011.
The AJ initially listed the facts not in dispute in the case at hand. The AJ noted that the Agency determined that the Houston district required to "excess" or involuntary reassign employees who are considered excess employees. The District's Complement Coordinator (Coordinator) identified the employees who were subject to the city-wide excessing based on seniority and notified management to inform the impacted employees. Complainant, as a junior employee within the Houston District was identified as an excess employee based on his seniority. Therefore, on June 18, 2009, Complainant and his facility's management were notified that due to operational changes that required excessing of clerks in his unit, Complainant would become an unassigned regular and involuntarily reassigned, effective July 4, 2009. On August 11, 2009, Complainant was notified that due to excessing, he was involuntarily reassigned to a city carrier position at the Agency's Foster Place Station, effective August 15, 2009. On August 15, 2009, Complainant reported to Foster Place Station and refused to carry mail. However, he informed the Agency that he could not perform the carrier position. On August 24, 2009, Complainant requested light duty. The record indicated that the Agency a city-wide search for available work within Complainant's restrictions. However, the Agency found no light duty work was available within Complainant restrictions. The AJ then noted that on January 30, 2010, Complainant was scheduled to return to Rich Hill Station. Due to Complainant's repeated failure to follow instructions at Foster Place Station, Complainant was given an investigative interview and not allowed to work.
The AJ found that Complainant established a prima facie case of age, sex, and disability discrimination. The AJ determined that Complainant failed to establish a nexus between his prior protected EEO activity and the alleged discrimination. The AJ then found that the Agency provided legitimate, nondiscriminatory reasons for its actions. Further, the AJ held that Complainant failed to show that there was a position which met his medical restrictions at that time. As such, the AJ concluded that Complainant did not establish that the Agency's action constituted discrimination based on his sex, age, disability and/or prior protected EEO activity.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed.
ANALYSIS AND FINDINGS
Summary Judgment
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Complainant also must show that he is a "qualified" individual with a disability within the meaning of 29 C.F.R. � 1630.2(m). We note that the discussion of "qualified" does not end at complainant's position. The term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. � 1630.2(m). The term "position" is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is "qualified," an agency must look beyond the position which the employee presently encumbers. Accordingly, the Agency should consider reassignment. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance - Reasonable Accommodation), No. 915.002 (revised October 17, 2002); see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o).
Complainant has an evidentiary burden in such reassignment cases to establish that it is more likely than not (preponderance of the evidence) that there were vacancies during the relevant time period into which complainant could have been reassigned. Complainant can establish this by producing evidence of particular vacancies. However, this is not the only way of meeting complainant's evidentiary burden. In the alternative, Complainant need only show that: (1) he was qualified to perform a job or jobs which existed at the agency, and (2) there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period.
The record indicated that the Agency identified Complainant based on his seniority that his position was excesssed based on the needs of the Houston District. As such, the Agency then involuntarily reassigned to the carrier position. Complainant asserted that he could not perform the carrier position. As such, he was not qualified for the carrier position. However, Complainant failed to show that he was qualified in that there was another position or vacancy to which Complainant could be reassigned. We note that on appeal asserted that the management at the Rich Hill facility did not want him to return. However, Complainant did not assert that there was a position or vacancy at the Rich Hill facility to which he could have been reassigned. As such, we find that the AJ properly found that Complainant failed to show that the Agency's action constituted a violation of the Rehabilitation Act.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, the Agency showed that it determined that the Houston District required excessing of employees based on seniority. Based on Complainant's junior status, he was identified in a position that was considered to be excessed. As such, Complainant was involuntarily reassigned to the carrier position. We find that the Agency provided legitimate, nondiscriminatory reasons for its actions. Further, Complainant has not shown that the Agency's reasons were pretext for 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 adopting the AJ's decision without a hearing.
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
January 31, 2013
__________________
Date
2
0120112244
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112244