Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jun 20, 2013

0120121981 (E.E.O.C. Jun. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120121981

Hearing No. 430-2011-00194X

Agency No. 1K-284-0016-11

DECISION

Complainant filed an appeal from the Agency’s February 23, 2012 Final Order concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 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 as a Mail Processing
Clerk at the Agency’s Fayetteville Processing and Distribution Center facility in Fayetteville,
North Carolina. On November 19, 2010, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of disability and age (51) when:

On September 25, 2010, the Agency changed her tour of duty work hours due to the
implementation of the National Reassessment Process (NRP).

By letter dated December 13, 2010, Complainant’s claim based on age was accepted for
investigation. 1

1 Complainant’s complaint based on disability was severed from the instant complaint and
subsumed under the class complaint of McConnell v. United States Postal Service (Agency No.
4B-140-0062-06). In 2004, the Agency began the development of the NRP, an effort to
“standardize” the procedure used to assign work to injured-on-duty employees. In the class
complaint, McConnell claims that the Agency failed to reasonably accommodate class
At the conclusion of the investigation, the Agency provided Complainant with
0120121981

2
a copy of the report of investigation and notice of her right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant requested a hearing. When Complainant did
not object, the AJ assigned to the case granted the Agency’s January 9, 2012 motion for a
decision without a hearing and issued a decision without a hearing on February 17, 2012.

In his Decision, the AJ found that the material facts were not in dispute. Specifically, the AJ
found no dispute that Complainant was injured on the job in November 2009, and that she
occupied a limited duty or modified duty position with Saturday and Sunday off. From
December 2009 through August 2010, Complainant’s hours were noon to 8:30 pm. The AJ
further found that on August 31, 2010, Complainant learned that her limited duty position
would change and her duty hours would be changed as a result of the NRP to 7:00 pm - 3:30
am. The AJ found that the change in Complainant’s schedule was effective September 25,
2010. Complainant, the AJ noted, was told that she could accept the new modified duty job
offer or she would be sent home. The AJ noted that Complainant continued to be offered eight
hours of work each day and that her non-scheduled days remained the same.

The AJ found that Complainant did not identify any other employees, not in her protected
group, who were treated better than she was under the same or similar circumstances.
Specifically, the AJ found that Complainant identified another employee, E1, but E1 was not
substantially younger than Complainant, being less than three years younger than Complainant.
Furthermore, the AJ noted that E1 did not suffer from an injury received on the job, but from
an injury unrelated to his employment. The AJ found that Complainant failed to present a
prima facie case of age discrimination.

The AJ considered that even if Complainant had established a prima facie case, that the
Agency articulated legitimate, non-discriminatory reasons for its actions. Specifically, the AJ
observed that the Agency’s NRP determined, based on Complainant’s medical restrictions and
automation, that Complainant’s previous work was no longer available and the NRP identified
necessary tasks within Complainant’s medical restrictions. The AJ found that Complainant’s
medical restrictions, the automation of the mails, and the necessary tasks identified by NRP
were the motivation for the Agency’s actions and that Complainant did not show that her age
played any role in the Agency’s decision.

The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected her to age discrimination as alleged.

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). This

members during and after the NRP. In McConnell v. U.S. Postal Serv., EEOC Appeal No.
0720080054 (January 14, 2010), the Commission affirmed the AJ's certification of the class.

0120121981

3
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
Def., 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).

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 he or she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. 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 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

0120121981

4
In the instant case, we find the AJ properly issued the Decision without a hearing.
Specifically, we find no dispute that Complainant suffered an on-the-job injury and that she
worked with specific medical restrictions. We further find no dispute that Complainant’s hours
were changed when she received a new modified job offer with a begin tour time of 7:00 pm
instead of the noon begin tour time that she previously had.

We concur with the AJ that Complainant did not identify other, younger similarly situated
employees who were treated differently regarding their schedules due to the NRP. We further
concur that Complainant did not present evidence from which a trier of fact could conclude
that the Agency’s stated reasons for its actions were false and unworthy of belief.
Accordingly, we discern no basis upon which to disturb the AJ’s Decision.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Order finding 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
0120121981

5
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 20, 2013
Date