0120123419
03-11-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120123419
Hearing No. 430-2011-00236X
Agency No. 4K-230-0064-11
DECISION
On August 30, 2013, Complainant filed an appeal from the Agency's July 26, 2012 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. The Commission deems this appeal as timely and accepts it for de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order.
BACKGROUND
Due to severe physical restrictions from on the job injuries, Complainant, a former Letter Carrier, had been working in a limited duty position, 8 hours per day, for eleven years at the Seapines Station in Virginia Beach, Virginia. In September 2010 and pursuant to the National Reassessment Process (NRP), the District Assessment Team determined that there were no longer any available necessary tasks for Complainant to perform, and he was sent home. He filed a grievance and an MSPB appeal, as well as this instant EEO complaint, alleging disability discrimination and retaliation. His disability claim was subsumed in the McConnell class action, and the Agency initially processed the complaint as a mixed case complaint, but after the MSPB determined it had no jurisdiction, the Agency notified Complainant of his right to request a hearing before an EEOC Administrative Judge (AJ). In April 2011, Complainant requested a hearing.
On February 1, 2012, while his hearing request was pending, an arbitrator sustained Complainant's grievance and ruled that at least some of the duties Complainant had been performing remained available. The arbitrator found that management's use of the NRP to impose new efficiency-related criteria onto the work it defines as "available" for injured employees violated a 2009 National Level Settlement and the Agency's contractual obligations. The arbitrator also found that some of the work Complainant had been performing was assigned to other employees and that it was not done so as to provide those employees with full-time work, as evidenced by the fact that Carriers at the Seapines Station were regularly working significant overtime during the relevant time frame. The arbitrator ordered the Agency to reinstate Complainant to a limited duty assignment and to make him whole.
Notwithstanding the arbitrator's decision, the AJ assigned to the case determined sua sponte and over Complainant's objections that summary judgment was appropriate. In her July 23, 2012 decision, the AJ found that the Agency articulated a legitimate and nondiscriminatory reason for sending Complainant home, namely that there was no work available for him to continue performing. The AJ rejected Complainant's argument that the arbitrator's finding that there was work available placed a material fact into genuine dispute:
... the Arbitrator's decision was based on standards and analysis which are inapplicable in the EEOC hearings process. Specifically, the Arbitrator's decision notes that the Agency (management) held the burden of proof in that proceeding, which is not the case in this forum. The Arbitrator's decision also focused on the Agency's failure to follow "pecking order" roles under the collective bargaining agreement and those rules are inapplicable here. Contrary to Complainant's contentions, the Arbitrator's decision does not identify any job that Complainant could have done with his restrictions. Thus, the Arbitrator's decision does not create a genuine issue of material fact sufficient to require a hearing.
AJ Decision at 8. The AJ concluded that none of Complainant's arguments, either alone or in the aggregate, could lead a reasonable fact finder to conclude that he was retaliated against. The Agency issued a final order adopting the AJ's conclusion, and this appeal followed.
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). 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.
The AJ is correct that the adjudication of this case does not turn on whether or not the collective bargaining agreement rules were followed. Rather, the issue is whether the limited duty position Complainant held for so long was taken away from him in retaliation for his prior protected activity. The evidence is more than adequate to support a prima facie case of retaliation. Management claims that there were no longer any available tasks for Complainant to perform. However, some of the tasks that Complainant had performed 8 hours per day for 11 years were assigned to other employees who, according to the arbitrator, already had full time work and were incurring significant overtime. These are material facts and sufficient to create a dispute as to whether management's explanation was credible. On remand, the AJ shall hold a hearing to determine whether management's decision to send Complainant home pursuant to the NPR was a pretext for retaliation.
CONCLUSION
Therefore, the Commission reverses the Agency's final action and remands the matter to the Agency in accordance with this decision and the Order below. On remand, it may be appropriate for the AJ to consolidate this complaint with Agency No. 4K-230-0119-12/EEOC Hearing No. 430-2013-00402X wherein Complainant also alleges he was retaliated against when, after his retirement was effective, the Agency issued him a Notice of Removal. See EEOC Appeal No. 0120130441 (April 9, 2013).
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Charlotte District Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
March 11, 2015
__________________
Date
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0120123419
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123419
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