0120093057
07-08-2011
Debra Demagnus, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Debra Demagnus,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120093057
Hearing No. 480-08-00122X
Agency No. 4F-900-0160-07
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s June 5, 2009 final order concerning her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sales Associate at the Los Angeles Airport Finance Station in
Los Angeles, California. On July 24, 2007, Complainant filed a formal
complaint alleging that the Agency discriminated against her on the bases
of race (African-American), sex (female), color (fair complexion/light
skin), disability, age (52), and in reprisal for prior protected EEO
activity when:
1. In 2007, Complainant’s Family and Medical Leave Act (FMLA) conditions
or limitations were not honored;
2. She was not assigned overtime on two or three occasions; and,
3. She was denied a request to swap jobs with a Las Vegas, Nevada-based
employee.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant's objections,
the AJ assigned to the case granted the Agency's motion for a decision
without a hearing and issued a decision on May 28, 2009.
In his decision, the AJ assumed arguendo that Complainant had established
a prima facie case of discrimination on the alleged bases and found
that the Agency had articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, as to claim (1), the AJ determined
that the Agency proffered undisputed evidence reflecting that, in
issuing job assignments and tasks to Complainant, Complainant's work
limitations, including all of her FMLA covered conditions, were at all
times respected and fully complied with. Regarding claim (2), Complainant
was not entitled to work overtime on the occasions in question because:
(1) the Station’s workload was insufficient to justify overtime;
(2) Complainant's light/limited duty restrictions precluded her
from performing any overtime assignments that may have otherwise been
available; and/or (3) Complainant was not scheduled to work on the days
and at the times any overtime work may have been available.
Finally in regard to claim (3), Complainant's transfer or “job-swap”
request was denied because, in reviewing Complainant's proposal to
“swap” jobs with an Agency employee in Las Vegas, Nevada, it was
determined by Human Resources officials that the District had begun the
process of excessing clerks, a process predicted to take an extended
period of time, and that mutual trade requests within Complainant's clerk
craft could, therefore, not be granted during the process. In addition,
the AJ concluded that such a job trade or swap was also precluded in the
instant matter because the employee with whom Complainant sought to trade
jobs was not in Complainant’s craft and was not interested in working
at the Los Angeles Airport Finance Station where Complainant was working.
The AJ concluded that Complainant had presented no evidence establishing
that the Agency’s reasons were pretextual. As a result, the AJ
held that Complainant had not been discriminated against as alleged.
The Agency subsequently issued a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the Agency’s reasons for not
transferring are contradictory and pretextual. As a result, Complainant
requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
Decision without a Hearing
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which required
a hearing and therefore the AJ's issuance of a decision without a hearing
was appropriate. The Commission concludes that, even assuming all facts
in favor of Complainant, a reasonable fact finder could not find in her
favor, as explained below. Therefore, no genuine issues of material
fact exist. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claims 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). He must
generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, the Commission finds that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
as to claim (2), Complainant’s supervisor (S1) stated that Complainant
was not granted overtime on April 15 and April 16, 2007, because those
days were her non-scheduled days and no one worked full-tour overtime on
those days. ROI, at 158. Further, on April 17, 2007, Complainant was not
needed for end-tour overtime because there were enough employees to cover
the needs of the service. Id. Additionally, Complainant’s manager
(M1) confirmed that overtime is given based on the needs of the service.
Id. at 130-31. Finally, M1 added that on April 16 and April 17, the
traffic was not heavy enough to warrant extensive use of overtime.
Id. at 131.
Regarding claim (3), the record reveals numerous reasons why
Complainant’s transfer to Las Vegas did not occur. The Los Angeles
District Human Resources Manager (HRM) stated that Complainant was
attempting to do a mutual trade, but the trade could not be completed as
requested because it was not in accordance with the collective bargaining
agreement. ROI, at 169. HRM explained that Complainant works in the
Los Angeles District Bid Cluster while the Las Vegas employee with whom
Complainant was attempting to do a mutual trade wanted to be reassigned to
the Los Angeles Bulk Mail Center. Id. The Los Angeles Bulk Mail Center
is in a different bid cluster than the Los Angeles District Bid Cluster;
therefore, employees in the Los Angeles District Bid Cluster cannot bid
to the Los Angeles Bulk Mail Center, nor can they do mutual trades that
permit someone from another district/area to be reassigned to the Bulk
Mail Center. Id. Additionally, the transfer could not be completed
because the Las Vegas employee was a clerk and the Los Angeles District
was in the process of excessing clerks at the time. ROI, at 173, 177.
Complainant now bears the burden of establishing that the Agency's stated
reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec'y
Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation
is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450
U.S. at 256. The Commission finds that the record is devoid of any
evidence that discrimination was a factor in any of the Agency's actions.
At all times, the ultimate burden of persuasion remains with Complainant
to demonstrate by a preponderance of the evidence that the Agency’s
reasons were not the real reasons, and that the Agency acted on the basis
of discriminatory animus. Complainant has failed to carry this burden.
Accordingly, the Commission finds that Complainant has failed to show
that she was discriminated against as alleged.
Denial of Reasonable Accommodation
To the extent that Complainant alleges that the Agency denied her
reasonable accommodation in claim (1), the Commission notes that the
Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. § 1630. In order to establish
that Complainant was denied a reasonable accommodation, Complainant must
show that: (1) she is an individual with a disability, as defined by 29
C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability
pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide
a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915.002 (Oct. 17, 2002). Under the Commission's regulations, an
Agency is required to make reasonable accommodation to the known physical
and mental limitations of a qualified individual with a disability unless
the Agency can show that accommodation would cause an undue hardship.
See 29 C.F.R, §§ 1630.2(c) and (p). For purposes of analysis, the
Commission shall assume, without so finding, that Complainant is a
qualified individual with a disability.
M1 affirmed that Complainant submitted return to work documentation
from her physicians dated March 6, 2007, but the documentation was
vague with no specific duration. ROI, at 128. M1 prepared a worksheet
to prepare a light duty offer based on her restrictions for the Injury
Compensation Office. Id. The Medical Unit stated that the documentation
was not acceptable and requested that Complainant submit additional
documentation indicating the duration of Complainant’s condition and
specific restrictions. Id. Complainant’s restriction was to not
be moved around to different assignments. The record indicates that
the restriction was honored as Complainant worked either the window or
business reply desk without back and forth movement between sections.
Id. at 156. The Commission notes that the Agency may choose among
reasonable accommodations as long as the chosen accommodation is
effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002).
Complainant has presented no evidence that any of the provided
accommodations were ineffective. Accordingly, the Commission finds
that Complainant did not establish that the Agency failed to provide
her reasonable accommodation.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 (Nov. 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
July 8, 2011
Date
2
0120093057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093057