0120150299
04-10-2017
Jared F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jared F.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120150299
Hearing No. 470-2014-00031X
Agency No. 1C-451-0003-13
DECISION
On October 25, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 1, 2014, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing. The decision found that Complainant did not demonstrate that he was subjected to discrimination as alleged.
ISSUE PRESENTED
The issue presented in this case is whether the AJ correctly found that Complainant was not subjected to disability discrimination when he was not allowed to participate in early retirement options.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-time Tractor Trailer Operator at the Agency's Cincinnati Processing & Distribution Center in Cincinnati, Ohio. On September 18, 2012, Complainant applied for disability retirement and made a "statement of disability" in which he indicated that he was "fully/completely disabled" per his physician. He maintained that he could not stand or walk without assistance. He also indicated that there were no accommodations available to him because of his condition.
On October 1, 2012, the Agency announced a Special Incentive Offer, targeted at all career APWU employees, with certain exceptions. Along with several other groups, "[e]mployees who separate under disability retirement" were excluded from the Special Incentive Offer. Thus, Complainant was excluded from the category of employees eligible for the special incentive offer.
Subsequently, a Voluntary Early Retirement (VER) was also announced. To be eligible for the VER, an employee had to be age 50 with 20 years of service or have 25 years of service regardless of age. Complainant met the age requirement but not the service requirement, and therefore he did not fall into either VER category at the time he made his application for disability retirement.
On or about October 17, 2012, Complainant was told that, if he wanted to take part in the Special Incentive Office, he would have to withdraw his application for disability retirement by December 3, 2012. Complainant did not, however, withdraw his disability retirement paperwork.
On January 28, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him because of disability (back injury) when on or about October 17, 2012, the Agency notified him that he was not eligible for Voluntary Early Retirement, citing his request for disability retirement on September 18, 2012.
After 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 Administrative Judge. Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency's February 11, 2014, motion for a decision without a hearing and issued a decision without a hearing on September 23, 2014.
The AJ found that Complainant did not establish a prima facie case of disability discrimination. Specifically, the AJ noted that Complainant did not show that he was a qualified individual with a disability. The AJ noted Complainant's assertion that he was unable to perform the essential functions of his position with or without an accommodation. Notwithstanding, the AJ determined that the Agency put forth evidence of legitimate, nondiscriminatory reasons for not allowing Complainant to take part in either the VER or the Special Incentive Offer. In the case of the VER, Complainant did not meet the service requirement at the time he made his application for disability retirement. Regarding the Special Incentive Offer, Complainant had already applied for disability retirement; and did not withdraw his application to take the Special Incentive Offer.
In sum, the AJ found that the record was devoid of any evidence from which one could reasonably conclude that Complainant was discriminatorily denied VER or a Special Incentive Offer because of his disability. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he is disabled as he cannot stand or walk without a walker and that this clearly limits his major life activities. He also alleges that if he had "pulled" his disability papers to receive the Special Incentive Offer he would have lost back pay and pay for Health & Life insurance.
In response, the Agency contends, among other things, that Complainant's complaint and appeal are based solely on his disappointment about the process.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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").
ANALYSIS AND FINDINGS
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. 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).
We find that the AJ properly granted summary judgment. The record has been adequately developed, the parties engaged in discovery, and Complainant had an opportunity to respond to the Agency's motion for summary judgement. For the reasons discussed below, we find that, even assuming all facts in the light most favorable to Complainant, a reasonable fact-finder could not find in his favor. There being no genuine issue of material fact, a decision without a hearing was appropriate.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima face case of disability discrimination and assuming without finding that he is a qualified individual with a disability, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant was not allowed to participate in the incentive programs because he was not qualified for the VER and he chose disability retirement over the Special Incentive Offer. We find that Complainant did not provide any evidence which showed that a non-disabled employee was allowed to participate in the Special Incentive Offer, or VER under similar circumstances as his. As such, we find that Complainant has not demonstrated that the Agency's reasons were pretext for discrimination or that discriminatory animus was involved in this case. On appeal, Complainant provided a very plausible explanation for why he did not withdraw his disability retirement application. Nevertheless, he has not shown that the Agency's actions were based om discrimination.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which fully implemented the AJ's decision which found that Complainant did not demonstrate that he was subjected to discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__4/10/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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