0120073234
12-17-2009
Irma Baca, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Irma Baca,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120073234
Hearing No. 480-2006-00314X
Agency Nos. 4F926006306; 4F-926-0145-06
DECISION
On July 11, 2007, complainant filed an appeal from the agency's June
12, 2007 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
ISSUES PRESENTED
(1) Whether the AJ appropriately issued a decision without first holding
a hearing.
(2) Whether complainant established that she was subjected to
discrimination or retaliation, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a distribution clerk at the La Verne, California Post Office. Complainant
filed two EEO complaints, which were subsequently consolidated, alleging
that she was discriminated against on the bases of disability (shoulder
and arm injuries; arthritis) and age (57) when:
(1) on December 15, 2005, she was offered light duty with Sundays and
flexible off days, and after an injury recurrence1 her duty hours were
changed (start time changed from 6:00am to 10:00am); and she was not
returned to work on February 14, 2006.
Complainant additionally alleged that she was discriminated against on the
bases of disability, age, race/national origin (Hispanic), and reprisal
for prior protected EEO activity [arising under the Rehabilitation Act
and ADEA] when:
(2) she was denied light duty work on or about May 25, 2006.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. When complainant did not object,2 the AJ assigned
to the case granted the agency's February 13, 2007 motion for a decision
without a hearing and issued a decision on June 8, 2007.
AJ Decision
The AJ found that complainant is an "individual with a disability" as
she established that she was substantially impaired in the major life
activity of lifting, noting that complainant's lifting restrictions
ranged from 5 to 10 pounds. The AJ next found that complainant failed
to show that there was a genuine material dispute that she was unable to
perform the essential functions of a distribution clerk position, even
with an accommodation. The AJ further found that the agency offered
complainant modified clerk duties because she was collecting OWCP, and
the agency had a financial incentive to find any type of work within
her medical restrictions to minimize how much it had to reimburse the
DOL because of her on the job injury. The AJ found however, that after
complainant refused (or failed to act) on the limited duty job offers
related to her on-the-job injury between December 2005 and February 2006,
and after she suffered an off the job injury that precluded her from
working the previous limited duty job offers, the agency made one last
attempt to offer her light duty work as a modified clerk performing
less than the essential functions of a distribution clerk position,
which was not a vacant, funded position.
The AJ went on to find that from April 17 to about May 25 or 30, 2006,
the agency allowed complainant to throw box mail within her medical
limitations, which was one of several essential duties of a distribution
clerk. However, complainant was only able to do this for 2 to 3 hours
a day and then she would complain about her arm hurting and she would go
home. On May 30, 2006, complainant refused to help a letter carrier put
labels onto mailing jackets because her impairments were so substantially
limiting that she could not perform this task. The Officer-in-Charge
(OIC) then asked the District Reasonable Accommodation Committee (DRAC) to
meet with complainant and re-engage the interactive process to determine
what work she could perform so that a search could be made for vacant,
funded positions for which she was qualified, and could be reassigned.
The AJ found that in June 2006, the DRAC committee met with complainant
and she provided updated medical documentation, and information about
the type of work she could and could not perform. The AJ found that a
search was then conducted for vacant, funded positions in the Southern
California region, but there were no such positions that would accommodate
complainant's medical restrictions.
The AJ concluded that the agency met its legal obligations under the
law, noting that the agency engaged in the interactive process and
conducted a search for vacant, funded positions. Further, the AJ found
that complainant failed to meet her burden of establishing that it is
more likely than not that there were vacancies during the relevant time
period into which she could have been reassigned. The AJ concluded
that complainant failed to establish that she is a qualified individual
with a disability and failed to show that the agency subjected her to
disability-based discrimination under either issue.
The AJ then addressed complainant's allegation that she was not reasonably
accommodated because of her national origin, age, and reprisal. The AJ
found that complainant failed to proffer sufficient evidence to show
how these bases were invoked in the interactive process. According to
the AJ, even assuming arguendo that complainant established a prima
facie case on any or all bases, she failed to show that there was a
genuine material dispute concerning the agency's articulated reasons.
The AJ concluded by finding no discrimination. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant does not provide a supporting brief, but attaches
a portion of a Decision and Order dated June 11, 2007, by the United
States Department of Labor, Employees' Compensation Appeals Board,
which apparently found that she failed to establish that she sustained an
injury while in the performance of duty. The agency asks the Commission
to affirm the final order.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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 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. Department of Defense, 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 this case, the Commission finds that the AJ properly issued a decision
without first holding a hearing, because there were no genuine issue of
material fact or credibility in dispute.
Disability Claims
In order to be entitled to protection from the Rehabilitation Act,
complainant must make the initial showing that she was a "qualified
individual with a disability." Assuming arguendo that complainant was
an individual with a disability within the meaning of the Rehabilitation
Act, we conclude that complainant has not proven, by a preponderance
of the evidence that she was a qualified individual with a disability.
A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education and
other job related requirements of the position such individual holds or
desires, and who, with or without reasonable accommodation, can perform
the essential functions of the position. 29 C.F.R. � 1630.2(m).3
The record reveals that on February 14, 2006, while complainant was off
work, she refused the agency's December 12, 2006 job offer (which required
her to do nixies, return to sender mail and "CFS" duties), saying in
a note that the job offer was not "consistent with my restrictions,"
but not clearly specifying which aspect(s) of the offer violated her
restrictions. See ROI, Ex. 4 at 1. The agency claims that complainant
was actually unhappy that her start time had changed from 6:00am to
10:00am. In response, the agency created a more detailed job offer for
complainant on February 28, 2006. This job offer specifically stated that
complainant would not be required to lift more than 5 pounds, push a cart
more than 50 to 100 feet, stand for more than 45 minutes, or sit for more
than 3 hours. The record indicates that complainant never responded to
this job offer. In April, complainant was permitted to return to work,
throwing mail into boxes but she experienced pain and had to leave early.
Accordingly, in May 2006, management asked complainant to help a letter
carrier put labels onto mailing jackets, however, she refused and was sent
home because there was no other light duty work available for her to do.
Finally, the OIC again contacted the DRAC concerning whether there was
work for complainant. The DRAC conducted a search for a position for
complainant in the cities of Industry, Santa Ana, Anaheim, Long Beach and
Ontario, but no vacant funded position was available within complainant's
restrictions.
The record therefore indicates that complainant could not perform the
essential functions of her position during the relevant time period,
nor were there any vacant, funded position to which she could have
been reassigned. Therefore, complainant did not show that she was a
"qualified individual with a disability" during the relevant time.
Accordingly, we cannot conclude that she was subjected to a violation
of the Rehabilitation Act.
Disparate Treatment
As to the claim that the denial of reasonable accommodation was based
on complainant's national origin, age and/or prior EEO activity,
we note that in the absence of direct evidence of discrimination, the
allocation of burdens and order of presentation of proof in a Title VII
or ADEA case alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt
v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Here, assuming complainant could establish a prima facie case of
discrimination with respect to her alleged bases, the agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
as to issue (1), management stated that complainant's duty hours were
changed by her immediate supervisor based on her medical restrictions
(i.e. she could not perform the duties of unloading trucks, pushing or
pulling) and she was given a modified job offer within those restrictions.
Management denied that complainant was told she could not return to work.
The OIC stated that complainant was not happy with the job offer and
never accepted it. The evidence is devoid of any evidence of pretext
as to this issue.
As to issue (2), the OIC explained that on April 6, 2006, complainant
went before the DRAC and indicated to them that she would be applying
for disability retirement. The OIC stated that after a search was
conducted for a temporary detail not to exceed 90 days, no vacant, funded
positions that would accommodate complainant's medical restrictions,
were identified. The OIC stated that on or around May 30, 2006,
complainant was asked to go home because she refused to do light duty
work that was offered to her, and no other light duty work was available.
This record is devoid of any persuasive evidence that the agency's reasons
are most likely pretexts for national origin, age, or reprisal-based
discrimination.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
_______12/17/09___________
Date
1 On December 17, 2005, complainant fell in the parking lot of a grocery
store and injured her lower back, buttocks and hips.
2 The AJ noted in his decision that complainant failed to submit the
required pre-hearing report. See AJ Decision at 2.
3 We note that an employer is not required to create a job for a disabled
employee, nor is it required to transform its temporary light or limited
duty assignments into permanent jobs to accommodate an employee's
disability. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir. 1997);
see also Woodard v. United States Postal Serv., EEOC Appeal No. 01A21682
(July 29, 2003); EEOC Enforcement Guidance: Workers Compensation and
the ADA, EEOC Notice No. 915.002 at 21 (September 3, 1996).
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0120073234
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120073234