0120083892
04-22-2010
John C. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
John C. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120083892
Hearing No. 532-2007-00145X
Agency No. 4C-430-0033-07
DECISION
On September 15, 2008, complainant filed an appeal from the agency's
August 15, 2008 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. 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a City Carrier at the agency's Processing and Distribution Center in
Columbus, Ohio. On March 14, 2007, complainant filed an EEO complaint
alleging that he was discriminated against on the basis of disability
(hip disarticulation) when:
1. On December 21, 2006, he received notice of denial of accommodation
from the District Reasonable Accommodation Committee (DRAC);
2. On or about March 24, 2007, complainant was notified that his health
benefits were terminated effective March 21, 2007 and his life insurance
was terminated on March 3, 2007. Additionally, complainant alleges he
has not received a response to his attempts to correct the situation as
of March 29, 2007, and;
3. On an unspecified date, he learned that management had made false
or misleading statements in the "Supervisor's Statement" section of his
retirement application.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. When complainant did not timely object, the AJ
assigned to the case granted the agency's February 19, 2008 motion for
a decision without a hearing and issued a decision without a hearing
on August 12, 2008. As to claim (1), the AJ assumed that complainant
was an individual with a disability, but found that complainant was
not a qualified individual with a disability as he could not perform
the essential functions of his position of City Carrier because he
was unable to walk. Next, the AJ found there were no vacant funded
positions that complainant could perform. As a result, the agency had
not denied complainant a reasonable accommodation. As to claim (2),
the AJ held that complainant's health benefits and life insurance were
terminated automatically after complainant remained in leave without pay
status (LWOP) for over a year. The record revealed that an adjustment
was made using donated leave and complainant's benefits and insurance
were restored.
Finally, as to claim (3), the AJ found that complainant failed to
show any harm or injury that he suffered because of the supervisor's
statement in his retirement package. As a result, the AJ found that
complainant failed to establish by a preponderance of the evidence that
he was subjected to discrimination. The agency subsequently issued a
final order adopting the AJ's decision. Complainant submits no arguments
on appeal. The agency requests that we 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.
We find that the AJ properly issued a decision without a hearing because
there is no genuine issue of material fact. Complainant asserts that the
agency's motion for a decision without a hearing was untimely. However,
we find no abuse of discretion in the AJ's issuance of a decision without
a hearing in this matter. Further, the record reflects and the AJ
notes in the decision that complainant was provided ample opportunity
to respond in writing to the agency's motion and failed to do so.
Accordingly, we find that the AJ's issuance of a decision without a
hearing was appropriate.
Reasonable Accommodation
We note that 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. 29 C.F.R. �� 1630.2(o)
and (p).
In order to be entitled to protection under the Rehabilitation Act,
complainant must make the initial showing that he was a "qualified
individual with a disability." Assuming arguendo that complainant is an
individual with a disability within the meaning of the Rehabilitation Act,
we conclude that he has not proven, by a preponderance of the evidence
that he 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 employment 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). In this
regard, we note that complainant can not perform the essential functions
of City Carrier nor has he identified an actual vacant, funded position
at the agency that he could have performed at the relevant time, and it
is his burden to do so. 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). As complainant has not established that he was a "qualified
individual with a disability" at the relevant time, we decline to find
that the agency's actions violated his rights under the Rehabilitation
Act.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcester 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.
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (2), the
record reveals that agency policy requires the automatic termination of
health benefits after an employee completes 365 days in LWOP status and
enrollment in the agency's life insurance program is terminated after 12
months in LWOP status. Report of Investigation (ROI), Exh. 15. The Human
Resources Generalist (HRG) asserts that this was rectified for complainant
through the use of advanced leave and his benefits were restored. ROI,
HRG's Aff. at 4.
As to claim (3), we agree with the AJ that complainant has failed to
show any harm or injury that he suffered because of S1's statement
in his retirement package. The AJ also noted that after applying for
disability retirement, which was granted in August 2007, complainant
declined retirement. We further note that the Commission has held that an
employee cannot use the EEO complaint process to lodge a collateral attack
on another proceeding. See Wills v. Department of Defense, EEOC Request
No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service,
EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States
Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper
forum for complainant to raise his challenges to actions which occurred
during the disability retirement application process is within that
proceeding itself. It is inappropriate to attempt to use the EEO process
to collaterally attack actions which occurred during the above process.
We find that aside from complainant's bare assertions, the record is
devoid of any persuasive 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 failed to carry this burden. Accordingly, we discern no
basis to disturb the AJ's decision.
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 (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
April 22, 2010_______
Date
2
0120083892
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083892