Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jun 27, 2013

0120121053 (E.E.O.C. Jun. 27, 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
(Eastern Area),
Agency.

Appeal No. 0120121053

Hearing No. 530-2009-00183X

Agency No. 1C-191-0001-09

DECISION

Complainant filed an appeal from the Agency’s November 18, 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. and 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 as a Mail Processing
Equipment Mechanic at the Agency’s Lindbergh Processing and Distribution Center facility in
Philadelphia, Pennsylvania. On December 24, 2008, Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of race (Asian), disability
(broken finger), and in reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when:

1. On September 29, 2008, Complainant was not paid properly for higher level
work;

2. On or about October 23, 2008, Complainant was forced to work in an unsafe
manner;

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3. From November 17, 2008 to December 10, 2008, Complainant was placed on
Leave Without Pay (LWOP); and

4. Complainant's request(s) for leave during December 2008, were denied.

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 requested a hearing.

By letter dated May 7, 2011, Complainant withdrew claim (1) from his complaint. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s June 1, 2011
Motion for a Decision without a hearing. The AJ issued a decision without a hearing on
December 3, 2011.

In her Decision, the AJ found that the material facts were not in dispute and that the record
was sufficiently developed upon which to render a decision. Regarding Complainant’s
complaint insofar as it is based on disability, the AJ found that in his pre-hearing submissions
Complainant withdrew disability as a basis for claims (2) and (4). The AJ further found that
Complainant withdrew race (Asian) as a basis for claims (2), (3), and (4). Thus, the only
claims that remained to be decided by the AJ are claims (2), (3) and (4) based on reprisal, and
claim (3) based on disability.

The AJ found that Complainant did not establish a prima facie case of discrimination based on
disability. The AJ found that Complainant did not present evidence that his broken finger left
him substantially limited in any major life activity or that his impairment was anything more
than a temporary restriction. The AJ acknowledged that Complainant did show that he was
unable to work from November 19, 2008 through January 29, 2009. The AJ found that
Complainant did not show that he was an individual with a disability and therefore did not
establish a prima facie case of disability discrimination.

Regarding Complainant’s reprisal claims, the AJ found that Complainant did not establish a
prima facie case of reprisal discrimination. Complainant, the AJ noted, previously participated
in the EEO process in August 2004, and achieved a settlement in that matter in March 2007.
However, the AJ found that Complainant did not show that the Agency officials involved in the
instant case were aware of Complainant’s prior protected activity. The AJ further found that
Complainant did not establish the necessary nexus between his prior protected activity and the
incidents of the instant complaint.

The AJ considered Complainant’s claims as if Complainant had established a prima facie case
of reprisal discrimination. Specifically, the AJ found that Complainant failed to identify any
other employees who were treated better than Complainant was treated under similar
circumstances.

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Regarding claim (2), the AJ noted that the Agency articulated a legitimate, non-discriminatory
reason for its actions. Specifically, S1 assigned Complainant to work on a job with a higher
priority than the one on which he was working. The Agency considered S1’s explanation that
Complainant was the only employee on duty with the training needed for the Enhanced Airline
Assignment equipment. S1, the AJ noted, told Complainant that though Complainant
complained he was being rushed, S1 stated to Complainant that Complainant could only be one
place at a time and advised Complainant not to rush because rushing caused additional
problems.

With regard to claim (3), the AJ found that Complainant and E1 were treated the same, except
that E1 was not injured during the altercation and thus was not placed on any specified leave
when he was placed off duty.

Regarding Complainant’s requests for leave in December 2008, (claim (4)), the AJ found that
Complainant was granted 80 hours of annual leave in December 2008, and that he failed to
identify any other employees who were granted more leave in December than he was. The AJ
noted that the employees to whom Complainant sought to compare himself received fewer than
80 hours of annual leave. E2 received 77 hours; E3 received 56 hours; and E4 received 70
hours. Accordingly, Complainant failed to establish a prima facie case of reprisal
discrimination regarding claim (4).

The AJ concluded that the undisputed facts showed that Complainant was not subjected to
discrimination as alleged. The Agency subsequently issued a Final Order adopting the AJ’s
finding that Complainant was not subjected to discrimination as alleged on any basis.

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
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
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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).

In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies
that its decisions were motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental
Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v.
WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a
prima facie case, complainant must demonstrate that: (1) he is an "individual with a disability";
(2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse
employment action; and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
The burden of production then shifts to the agency to articulate a legitimate, non-
discriminatory reason for the adverse employment action. In order to satisfy his burden of
proof, complainant must then demonstrate by a preponderance of the evidence that the
agency's proffered reason is a pretext for disability discrimination. Id.

Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).

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In the instant case, we find the AJ properly issued her Decision without a hearing. We find the
material facts are undisputed. We note, as did the Agency, in his pre-hearing submissions,
that Complainant does not claim he requested and was denied an accommodation for his
fractured finger at any time. We assume, without so finding, that he is an individual with a
disability. Specifically, Complainant suffered an injury to his finger and left work on
November 16, 2008. The record shows that he remained off work due to the Emergency
Placement memorandum and due to his injuries.1

Complainant states that he was unable to
return to work until he was released to return to work on January 29, 2009. That release
included a restriction that he not do any lifting. We find the undisputed facts show that from
November 16, 2008 through at least January 29, 2009, Complainant was unable to perform the
essential functions of his position and that he did not seek an accommodation. We therefore
find that Complainant did not show that he was a qualified individual with a disability and thus
failed to establish a prima facie case of disability discrimination with respect to claim (3).
We further assume, without so finding, that Complainant established a prima facie case of
reprisal discrimination regarding claims (2), (3), and (4). We find, as did the AJ, that the
Agency articulated legitimate, non-discriminatory reasons for its actions that Complainant did
not show were a pretext to mask discrimination. Specifically, we find that Complainant states
in his affidavit that he believed it was unsafe for him to be “flipped flopped between 3 floors
covering 24 high voltage, high power machinery” and for him to be working alone (claim (2)).
We find, as did the AJ, the undisputed evidence shows that Complainant was the only available
employee trained to work on the identified equipment, and that Complainant was unable to
show that any similarly situated employees who had not previously engaged in protected
activity were treated better than Complainant was. We find that Complainant presented no
evidence that S1 was aware of Complainant’s prior protected activity, nor evidence from which
an inference can be drawn that reprisal motivated S1’s decision to assign Complainant to the
identified equipment. We conclude that the undisputed evidence shows that Complainant was
not subjected to reprisal as alleged in claim (2).

Regarding Complainant’s placement on leave without pay (LWOP), (claim (3)), we find that
Complainant and E1 were both placed on Emergency Placement after the November 16, 2008
altercation. Complainant, the undisputed evidence shows, was injured in the altercation and
filed for compensation through the Office of Workers’ Compensation Programs (OWCP).
Ultimately, Complainant’s OWCP claim was accepted and Complainant received Continuation
of Pay (COP) from November 17, 2008 through December 10, 2008, as the AJ noted. We
find Complainant was properly placed off duty following the altercation, as was E1, and that
pending an investigation of the incident and acceptance of his claim for benefits through
OWCP, that Complainant was properly placed on LWOP by the Agency. Complainant was,
the Agency explained, placed off duty due to his own misconduct. We do not find that
Complainant submitted any evidence that the Agency’s decision to place Complainant off duty
together with E1 was motivated by his prior protected activity. We note, as did the AJ, that

1 The record indicates that Complainant was given a pre-disciplinary interview in December
2008, but did not return to his position until approximately March 2009.
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E1 was not injured in the altercation and thus E1 and Complainant were not similarly situated
following the Emergency Placement. We find the facts surrounding claim (3) are undisputed
and that Complainant has not shown that he was subjected to reprisal as alleged when he was
placed on LWOP as described.

Regarding claim (4), we find that the undisputed facts show that Complainant requested annual
leave for the entire month of December in a series of leave requests submitted November 2,
2008. S3, Complainant’s manager, stated that he met with Complainant and discussed
Complainant’s requests that were based in part, on an excessive balance of “use or lose”
annual leave that Complainant possessed as of November 2, 2008. S3 notes that he explained
to Complainant that Complainant could not take the entire month of December in annual leave
simply because he possessed excessive leave. The record shows that Complainant’s requests
for annual leave were partially approved (80 hours) and partially denied (112 hours) on
November 3, 2008.

We find, as did the AJ, that Complainant was granted annual leave in December 2008,
comparable to that granted to the other identified employees. We find the statements of S2 and
S3 appropriately characterize Complainant’s leave as similar to that granted to his co-workers.
We find Complainant did not present evidence that the Agency’s decision to deny, in part,
Complainant’s request for annual leave for all of December was false and that reprisal was the
real reason for the Agency’s actions.

CONCLUSION

Based on a thorough review of the record we decline to disturb the AJ’s determination that the
material facts are not in dispute and find the AJ properly issued her decision without a hearing.
We hereby 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
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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
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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 27, 2013
Date