0120110910
05-24-2013
Carol A. Polizzi, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Carol A. Polizzi,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120110910
Hearing No. 520-2009-00214X
Agency No. 4B-120-0031-08
DECISION
On November 29, 2010, Complainant filed an appeal from the Agency's October 28, 2010, 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 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 issue presented is whether substantial evidence of record supports the AJ's finding that the Agency did not discriminate against Complainant on the basis of disability when it placed her in a non-work status and subsequently issued her a letter of termination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales, Services, and Distribution Associate at the Agency's facility in Utica, New York. On September 29, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (knee, elbow, and shoulder injuries)1 when it placed her in a non-work status on June 10, 2008, and, on September 4, 2008, issued her a letter of termination effective October 11, 2008.2
Complainant began working at the Agency on October 15, 1983, and sustained an on-the-job injury on July 25, 2006. Following the injury, Complainant received a modified work assignment from the Agency and also received benefits from the Department of Labor's Office of Workers' Compensation Programs (OWCP).
On May 23, 2007, the Agency's Office of Inspector General (OIG) began an investigation into whether Complainant was exceeding the restrictions set forth in her OWCP Form CA-17 and whether she was working at her husband's business after she completed her four-hour limited-duty assignment at the Agency. Special agents from OIG interviewed Complainant on June 10, 2008, and the Agency placed Complainant in a non-work status pending the outcome of the OIG investigation.
The OIG issued its Report of Investigation on June 23, 2008. According to the Report, "[o]n May 23, 2007, U.S. Postal Service (USPS) management and the USPS, Injury Compensation Office, Albany District provided information that [Complainant] may be exceeding the restrictions set forth on her [OWCP] Form CA-17." The Report did not identify the management officials who provided the information to OIG. The "Allegation Findings" section of the Report stated that an Agency employee (Employee 1) told Complainant's former supervisor during the week of May 14, 2007, that she called the business of Complainant's husband, that Complainant answered the telephone on behalf of the business, and that Complainant had not disclosed her involvement in the business on the OWCP Forms CA-7 that she submitted.
The Report stated that OIG had observed Complainant exceeding her restrictions by climbing stairs and driving. It noted that, although Complainant acknowledged that she had engaged in those activities, she stated that she was not aware that her Forms CA-17 had placed restrictions on climbing and driving. It also noted that Complainant suggested that the Agency told her physician that her job did not involve climbing or driving and that he therefore wrote "zero hours" climbing and driving on the Forms CA-17.
In addition, the Report noted that Complainant also acknowledged that she had not disclosed rental income on the Forms CA-7 that she submitted from September 20, 2006, to February 1, 2008. Further, the Report stated that Complainant had been "observed/videotaped numerous times" at her husband's business after she completed her four hours of work at the Agency. According to the Report, Complainant "copied/sorted documents and answered the telephone while at" the business. The Report stated that Complainant told OIG that she had no role in the business, that the business's corporate authorization resolution listed her as "secretary" to enable bank officials to talk to her about the business's web-banking account, that a check that she endorsed and deposited was her husband's paycheck, that the business paid her cellular telephone bills because the accounts were on a family plan with the business phone, that a technology company sent an invoice to the business in her and her husband's names because she had called the company about problems with a business computer and her home computer, that an order for calendars sent to the business carried both names because the person ordering the calendars was her insurance agent, and that she ordered office supplies two or three times per year when her husband asked her to do so. According to the Report, Complainant stated that she "might do something" to help her husband's business but the help was sporadic and not four hours per day. A memorandum describing OIG's interview of Complainant reports that she stated that she was not an employee of the business and was not paid to promote the business. The memorandum also reports that Complainant stated that she had been trying to get off workers' compensation "for some time," that she "could have come back to work a long time ago," that she did not think she was doing anything inappropriately, and that she did not cheat or defraud workers' compensation.
On July 23, 2008, Complainant's first-level supervisor, the Supervisor of Customer Services (S1), conducted a pre-disciplinary interview (PDI) with Complainant to discuss the OIG Report. S1 asked Complainant a series of questions, and the Acting Manager of Customer Services recorded Complainant's answers in notes. Subsequently, on September 4, 2008, S1 issued Complainant a Notice of Removal effective October 11, 2008. The Notice charged Complainant with abusing the Federal Employees' Compensation Act by "providing work-related services" for her husband's business without reporting it on Forms CA-7 and by failing to report rental income on Forms CA-7. In addition, the Notice charged Complainant with misrepresenting her physical condition and ability to work and with exceeding the work restrictions set forth in her Forms CA-17.
Complainant submitted numerous documents with the affidavit she gave to the EEO Investigator. A June 10, 2008, letter from someone at the technology company states that she put Complainant's name on the invoice because she knows Complainant and her husband personally, and a June 10, 2008, letter from the insurance agency states that the calendar order was addressed to both Complainant and her husband as a courtesy because "they are both our insureds" and their names are on all of their policies. In a July 29, 2008, letter to OIG, a representative from OWCP stated that Complainant's receipt of rental income was not equivalent to running a real estate business and that there was no evidence that Complainant performed substantial self-employment services related to the rental. In a September 12, 2008, statement, Employee 1 stated that she had never contacted the business of Complainant's husband and did not contact it during the week of May 14, 2007. In a September 12, 2008, letter "To Whom it May Concern," Complainant's physician explained that he completed the Forms CA-17 based on his understanding of Complainant's job duties. He stated, "Those duties with a zero hours per day requirement were filled out as zero hours per day ability." Thus, for example, the physician put zero hours per day for driving because Complainant's job did not require her to drive.
At the conclusion of the EEO 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. Complainant timely requested a hearing, and the AJ held a hearing on May 25 and August 18, 2010.
Complainant's attorney sought to call a union steward and her husband as witnesses at the hearing. The attorney stated that the union steward could "help connect the dots" and would testify about such matters as OWCP forms and the handling of grievances, a conversation he had with the OIG special agent after Complainant's termination, and how the Agency generally conducts investigations after or in lieu of OIG investigations. In addition, the attorney stated that Complainant's husband could testify about exculpatory documents that the OIG left behind when agents went through his business files. The AJ, noting that he was not there to decide whether the Agency lived up to its policies about preventing grievances or to review the thoroughness of the OIG Report, denied the request.
At the hearing, Complainant testified that, during the PDI, she gave S1 the letter from the insurance agency and a second page from the technology company's invoice, which had her husband's name. According to Complainant, S1 was "very dismissive" and tossed the documents aside. Complainant asserted that the PDI "was a ramrod and that it was basically just going through the motions." She denied that she worked for her husband at any time, worked outside of her restrictions, committed fraud in her OWCP records, or misrepresented her injuries.
The Postmaster testified that he first learned of the OIG investigation in 2008, when an OIG special agent contacted him and asked him to arrange a time when the special agent could interview Complainant. He also testified that he had not had any contact with anyone from OIG before then. After the interview, the special agent told the Postmaster that there were discrepancies involving Complainant's income and OWCP forms. The Postmaster discussed the matter with his manager and the Manager of Human Resources, and they recommended that Complainant be placed on administrative leave pending completion of the investigation. The Postmaster testified that employees on administrative leave receive pay and benefits. The Postmaster further testified that he received a copy of the OIG Report of Investigation, gave it to S1, and instructed her to review the Report and to decide whether Complainant should be disciplined. He stated that he did not review the Notice of Removal before it was sent to Complainant.
S1 confirmed that the Postmaster gave her the OIG Report and told her to decide whether to discipline Complainant. She testified that, after reviewing the Report and consulting with the head of the Agency's Labor Relations Department, she arranged the PDI with Complainant. She also testified that Complainant's answers were vague and that Complainant did not seem to take the interview seriously. Based on Complainant's responses to her questions, and after again consulting the head of Labor Relations, S1 determined that Complainant's employment should be terminated.
The AJ issued a bench decision dated August 18, 2010, and issued a judgment order on October 20, 2010. In his decision, the AJ concluded that Complainant failed to prove that the Agency discriminated against her on the basis of disability when it placed her on emergency non-work status and issued a letter of termination.
The AJ found that Complainant had physical impairments that substantially limited her major life activities and that she established a prima facie case of discrimination based on disability with respect to the termination of her employment.3 The AJ also found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In that regard, the AJ noted that the Postmaster testified that he placed Complainant on emergency leave based on his conversations with the OIG special agent and after consulting with his superiors. The AJ also noted that S1 testified that she reviewed the OIG report and, based on Complainant's responses at the PDI meeting, concluded that termination was appropriate because Complainant's conduct constituted an intentional breach of Agency policy and regulations. The AJ found S1 "to be straightforward, candid and a credible witness notwithstanding her short-term tenure as Complainant's direct supervisor." Finally, the AJ concluded that Complainant failed to show that the Agency's articulated reasons were pretextual. He found no evidence, other than references to Agency policy concerning management's handling of grievances, to support Complainant's argument that S1 should have conducted an independent investigation rather than relying on the OIG Report. Similarly, the AJ found no evidence that the Postmaster or S1 exercised control over the OIG special agents. Further, there was no allegation that the OIG special agents produced the report with the intent to discriminate against Complainant on the basis of disability.
The Agency subsequently issued a final order fully implementing the AJ's determination that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant then filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that the AJ erroneously denied her request to call her husband, the union steward, and the OIG special agent as witnesses at the hearing. She asserts that the union steward could have impeached the Postmaster's testimony about the initiation of the investigation and the Postmaster's alleged intent to treat Complainant differently because of her need for reasonable accommodation. According to Complainant, the union steward would have testified that the Agency had an obligation to conduct a thorough investigation beyond the OIG investigation, that the Agency treated Complainant differently because of her disability, and that S1 told him that Complainant could have her job back if she did not return as a limited-duty employee. In addition, Complainant asserts that the special agent would have testified that the Postmaster gave the special agent the Form CA-17 that was in the OIG Report, that he relied solely on information that the Postmaster provided, and that he would have conducted the investigation differently if he had had a full understanding of the facts.
Complainant also argues that the OIG investigation "was initiated by false assumptions, and that the report was based on false pretenses, and failed to show any actual violations of postal policy and regulations." She asserts that the OIG report was "completely baseless," that it was a pretext for discrimination, and that she would not have been subjected to the OIG investigation but for her disability. Complainant also argues that Agency policy required S1 to conduct a complete investigation rather than rely on the OIG Report. Further, noting that the Postmaster testified that there were ten limited-duty employees when he began working at the facility in 2005 and five at the time of the August 2010 hearing, Complainant argues that his testimony demonstrates animus against Complainant as a limited-duty employee.4
In response, the Agency argues that substantial evidence supports the AJ's decision. The Agency asserts that, even if the OIG investigation was deficient, "there is simply no evidence that any management official directed the OIG investigation or the factual conclusions reached by the OIG agent in his report." In addition, the Agency argues that there is no evidence that the OIG special agent harbored any discriminatory animus against Complainant. Similarly, the Agency argues that Complainant has not shown that the Postmaster and S1 were motivated by discriminatory animus or that the stated reasons for their actions were untrue.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. See 29 C.F.R. � 1614.405(a). An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
As an initial matter, we find that Complainant failed to show that her husband, the union steward, and the OIG special agent would have provided relevant testimony or substantiated her claims in this case. As the AJ noted, he was not there to review the thoroughness of the OIG Report or to determine whether the Agency followed its policies concerning grievances. Administrative Judges have broad discretion in the conduct of hearings, see 20 C.F.R. � 1614.109(e); EEO-MD-110, Chapter 7 � III.D, and we find that the AJ did not abuse his discretion by denying Complainant's request to call the excluded witnesses.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that the AJ's decision that the Agency did not discriminate against Complainant is supported by substantial evidence of record. We assume for purposes of analysis, without so finding, that Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act and that she has established a prima facie case of discrimination based on disability.
As the AJ noted, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Postmaster directed a manager to place Complainant on administrative leave based on his discussion with the OIG special agent and the recommendation of the Postmaster's manager and the Manager of Human Resources. Upon receipt of the OIG Report of Investigation, the Postmaster asked S1 to review the Report and to determine whether Complainant should be disciplined. S1 reviewed the Report, consulted with the head of the Labor Relations Department, and conducted the PDI with Complainant. Based on Complainant's responses and after further consultation with the head of the Labor Relations Department, S1 decided that Complainant's employment should be terminated.
Complainant has not shown the Agency's reasons to be a pretext for discrimination. She challenges the findings of the OIG Report but, as the AJ noted, Complainant has not demonstrated that the special agent harbored any discriminatory animus against her. Similarly, Complainant has not demonstrated that discriminatory animus motivated S1 and the Postmaster. Complainant's claim that S1 should have conducted her own investigation rather than rely on the OIG Report does not establish that S1 discriminated against her. S1, whom the AJ found to be credible, testified that her decision to terminate Complainant's employment was based on Complainant's responses in the PDI. Complainant has not shown that S1's explanation is unworthy of credence or that S1 was biased against Complainant because of her disability.
Further, contrary to Complainant's assertion, the Postmaster's testimony that there were five fewer employees on limited duty in 2010 than there were in 2005 does not establish that the Postmaster was biased against Complainant because she was on limited duty. There is no evidence regarding the other limited-duty employees or their situations. Moreover, there is no evidence that the Postmaster had a disability-based bias against Complainant.
Complainant has failed to demonstrate that considerations of disability, rather than the OIG investigation and Report, motivated the Agency's actions. Accordingly, we find that substantial evidence of record supports the AJ's conclusions, and we affirm the AJ's determination that Complainant did not establish that she was discriminated against as alleged.
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, which implemented the AJ's finding of no discrimination.
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
May 24, 2013
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2008, the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008 applies to this case.
2 Complainant also alleged that the Agency discriminated against her on the basis of disability when management failed to protect her privacy when information about claims against her was shared with the workforce. By letter dated October 16, 2008, the Agency dismissed the allegation on the ground that it failed to state a claim and that, to the extent Complainant alleged a violation of the Privacy Act, it was outside the purview of the EEO process. Complainant has not appealed the dismissal of that allegation.
3 At the hearing, the AJ found that Complainant failed to establish a prima facie case of disability discrimination regarding her June 10, 2008, placement in a non-work status. Hearing Transcript at 444-43.
4 Complainant also argues that the Agency's National Assessment Process Limited Duty Pilot Program demonstrated a systemic Agency attempt to abolish accommodations and limited-duty assignments. Complainant did not allege, and there is no evidence, that the Agency terminated her employment pursuant to the Program.
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0120110910
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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