0120103357
01-06-2011
John W. Underhill, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
John W. Underhill,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120103357
Hearing No. 470-2009-00055X
Agency No. 1C-401-0037-08
DECISION
On August 13, 2010, Complainant filed an appeal from the Agency's July 22, 2010 final order concerning an equal employment opportunity (EEO) complaint claiming 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
Complainant worked as a Mail Processing Clerk at the Agency's Louisville Processing and Distribution Center (P&DC) facility in Louisville, Kentucky. In this position, Complainant suffered a work-related injury on June 3, 2006. As a result of his injuries, Complainant could no longer perform the duties of his bid. On July 28, 2006, Complainant accepted a limited duty, modified assignment with the Agency.
On August 29, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of physical disability.1 Complainant raised the following claim:
On June 5, 2008, Complainant was not awarded a job on which he had bid.
A review of the complaint file reveals that Complainant bid on a mail processing clerk position, and was the senior bidder. The bid posting informed limited duty employees that medical documentation must be provided in order to demonstrate the limited duty employee will be able to perform the duties of the bid position within six months of the bid. Complainant alleges the Agency did not accept his medical documentation and awarded the bid to a woman with less seniority.
According to the affidavit from the Selecting Official (SO), Complainant was not awarded the bid position because the medical documentation he provided did not satisfy the fitness requirement of the posting notice. SO stated, and the record establishes, that Complainant submitted two conflicting pieces of medical documentation. First, Complainant provided a prescription slip from a doctor, dated May 21, 2008, on which the doctor wrote, "In my medical opinion, this employee is physically capable of performing these jobs without restrictions [emphasis added]." The next day, Complainant submitted a form, also dated May 21, 2008, in which the same doctor indicates that Complainant is cleared to return to work with the following restrictions: no repetitive bending and/or twisting, no prolonged standing/walking, and no climbing ladders/stairs. In other words, the prescription slip provides no restrictions while the form provides restrictions. Based on the form containing ongoing medical restrictions that impacted on Complainant's ability to perform the duties of the bid position, he was not awarded the bid.
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 timely requested a hearing. Over the Complainant's objections, the AJ assigned to the case granted the Agency's March 17, 2009, motion for a decision without a hearing and issued a decision without a hearing on July 7, 2010. The AJ found that Complainant failed to successfully rebut the Agency's articulated legitimate and nondiscriminatory reason for not selecting him.
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
Complainant argues that he established a prima facie claim of disability discrimination and the AJ erred in finding no genuine issues of material fact were in dispute. Specifically, Complainant contends that the two medical forms he submitted as part of his bid did not conflict--one form was "in regards to a 'current' position" and should not be considered a "medical certification" responsive to the bid. Further, Complainant contends that the selecting official (SO) is not telling the truth; he notes SO admits that Complainant turned in "medical certification" and then presumably contradicts herself by later stating that he failed to provide "medical certification."
In its response, the Agency argues Complainant has failed to demonstrate how SO's interpretation of his medical documentation demonstrates discrimination based on his protected status. Further, the Agency contends that there exists no genuine issues of material fact and the AJ's decision is factually and legally sound.
ANALYSIS AND FINDINGS
We must 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).
After a thorough review of the record, we find that the record was adequately developed and that the AJ appropriately issued a decision without a hearing. Complainant does not dispute that he submitted two pieces of medical documentation, dated the same day, one of which contained medical restrictions that impacted on Complainant's ability to perform the duties of the bid position. The bid solicitation made it clear that such restrictions would result in losing the bid, and this is the reason provided by SO for why Complainant was not awarded the bid. There is no other evidence proffered by Complainant to suggest that the disputed decision was made for a discriminatory purpose. Complainant has simply not identified a material fact in dispute that requires resolution through a hearing.
Based on the undisputed evidence of record, in a disparate treatment claim 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 with respect to Complainant's claims, however, because the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 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 Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We agree with the AJ that Complainant failed to prove discrimination as alleged. Agency management witnesses averred that Complainant provided conflicting medical documentation. Because of this, the Agency determined that Complainant did not satisfy the requirements of the bid posting. We agree with the AJ that SO articulated a legitimate and nondiscriminatory reason for declining to award the bid to Complainant. See Candell v. U.S. Postal Serv., EEOC Appeal No. 0120101099 (July 9, 2010).
Complainant fails to carry burden of demonstrating SO's articulated reasons to be pretext for discriminatory animus. Complainant attempts to distinguish between the two pieces of medical documentation, arguing that they were submitted for different purposes. However, the medical documentation appears to be plainly contradictory. Even if SO was mistaken in interpreting the two medical documents, there is no evidence to show it was purposeful and for a discriminatory reason. Thus, we cannot conclude that the record shows by a preponderance of the evidence that SO's articulated reasons are pretext for unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision.
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 (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 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
January 6, 2011
__________________
Date
1 Although Complainant only alleges discrimination on the basis of disability, the investigator assigned to the case appears to have investigated discrimination based on sex (male). The Administrative Judge and the Agency also address this basis. However, because Complainant does not appeal the AJ's decision in regard to this basis, we do not address the matter any further.
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0120103357
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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