0120131089
06-25-2013
Lorna P. Ryan, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Lorna P. Ryan,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120131089
Hearing No. 510-2011-00524X
Agency No. 4H-330-0264-10
DECISION
On January 10, 2013, Complainant filed an appeal from the Agency's December 20, 2012, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Distribution Clerk at the Agency's Main Post Office facility in West Palm Beach, Florida.
On September 14, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (lumbar spondylosis) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. Since May 12, 2010, Complainant has not been permitted to work in her position; and
2. On March 22, 2011, Complainant's bid was disallowed for Job 95359301 Clerk Posting No. 34193.
At the conclusion of the investigation, the Agency provided Complainant 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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on December 14, 2012.
In her decision, the AJ listed facts not in dispute. The AJ noted that Complainant was a distribution clerk when she was injured on the job. As a result of the injury, Complainant could not carry over 20 pounds; could not sit or stand for more than four hours per day; limited to walking for two hours per day; pushing and or pulling activities for one hour per day; and no bending or twisting. Complainant has worked in a modified distribution clerk position since the injury in 1999. On May 12, 2010, the Postmaster indicated that Complainant and two other co-workers would be excessed due to the needs of the Agency. As such, Complainant was placed in the "resources room" until available work could be assigned. Complainant was offered a modified distribution clerk position on August 5, 2010. On or about September 21, 2010, Complainant was added to the National Reassessment Program (NRP) to determine if there was work available for Complainant to perform. The Agency concluded that there would be no work to which Complainant would be assigned. On October 5, 2010, Complainant submitted a request for a reasonable accommodation in the form of her former position. The record indicated that other co-workers bid and received positions. On March 21, 2011, the Manager advised Complainant that her bid for job 95359301 was denied. The position was for a Sales and Service Distribution Associate (SSDA position). The Agency found that Complainant's limitations did not permit her to assume the duties of the bid position.
Using these facts, the AJ issued her decision finding no discrimination. As to Complainant's claim of reprisal, the AJ found that Complainant established a prima facie case. However, the Agency provided legitimate, nondiscriminatory reasons for its actions, namely that due to the Agency's reduction in workload and their awareness of the NRP, it decided to take any individual in a rehabilitation/modified position and excess them. As a result, the Agency placed Complainant in the resources room pending assignment. The Agency did not place Complainant in the SSDA position because two other co-workers could perform the core functions of this position while Complainant could not. Therefore, the AJ found that Complainant failed to show that the Agency's action constituted unlawful retaliation. As to Complainant's claim of disability based discrimination, the AJ concluded that Complainant failed to establish that the Agency's actions were a violation of the Rehabilitation Act. Accordingly, the AJ determined that Complainant failed to establish that she was subjected to discrimination based on her disability and/or prior EEO activity.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed.
ANALYSIS AND FINDINGS
Claim of Disability Discrimination
We note that Complainant asserted that she was subjected to discrimination on the basis of disability since May 12, 2010; Complainant has not been permitted to work in her position. Subsequently, Complainant was disallowed a bid position in March 2011. The record indicates that in September 2010, Complainant became part of the NRP and the position was part of the NPR's attempt to assign Complainant work. We determine that these claims appear to raise a claim identical to a claim raised in the class complaint of McConnell v. U.S. Postal Serv. (Agency No. 4B-140-006206).
In 2004, the Agency began the development of the NRP, an effort to "standardize" the procedure used to assign work to injured-on-duty employees. In the class complaint, McConnell claims that the Agency failed to engage in the interactive process during the NRP in violation of the Rehabilitation Act. Further, the Agency allegedly failed to reasonably accommodate class members during and after the process.
On May 30, 2008, an EEOC Administrative Judge (AJ) granted class certification in McConnell, which defined the class as "all permanent rehabilitation employees and limited duty employees at the Agency who have been subjected to the NRP from May 5, 2006 to the present, allegedly in violation of the Rehabilitation Act." The AJ defined the McConnell claims into the following broader complaint: (1) the NRP fails to provide a reasonable accommodation (including allegations that the NRP "targets" disabled employees, fails to include an interactive process, and improperly withdraws existing accommodation); (2) the NRP creates a hostile work environment; (3) the NRP wrongfully discloses medical information; and (4) the NRP has an adverse impact on disabled employees. The Agency chose not to implement the decision and appealed the matter to the Commission. The Commission agreed with the AJ's definition of the class and the McConnell claims, as stated above. Accordingly, the Commission reversed the Agency's final order rejecting the AJ's certification of the class. McConnell v. U.S. Postal Serv., EEOC Appeal No. 0720080054 (Jan. 14, 2010).
Equal Employment Opportunity Management Directive 110, Chapter 8, � III(C) (Nov. 9, 1999) provides, in relevant part, that "[a]n individual complaint that is filed before or after [a] class complaint is filed and that comes within the definition of the class claim(s), will not be dismissed but will be subsumed within the class complaint." We find that such is appropriate in this matter. Complainant alleged that, under the NRP, the Agency failed to provide her with work within her medical restrictions. This claim of disability discrimination is properly subsumed within the McConnell class action. McConnell, EEOC Appeal No. 0720080054.
Therefore, the only claim before the Commission is Complainant's claim of unlawful retaliation.
Summary Judgment
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Reprisal Claim
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the AJ correctly held that the Agency provided legitimate, nondiscriminatory reasons for its actions. As to removing Complainant from her position in May 2010, the Postmaster averred that due to the reduction in work load and the need to streamline production, Complainant along with others were excessed and placed in the resources room pending assignment. As to the bid position, the Supervisor reviewed Complainant's application with the District Assessment Team Leader. The Team Leader determined that Complainant's limitations precluded her from performing the position. We find that the Agency provided legitimate, nondiscriminatory reasons for its actions. We turn to Complainant to show that the Agency's reasons were pretext for unlawful retaliation. Upon review, we find that Complainant has failed to do so.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's implementation of the AJ's decision finding no discrimination with regard to Complainant's claim of discrimination on the basis of reprisal. As for Complainant's claim of disability discrimination, the matter is REMANDED in accordance with the ORDER below.
ORDER
The Agency is ordered to subsume Complainant's claim (1) on the basis of disability in the instant complaint into the McConnell class action. See Equal Employment Opportunity Management Directive-110, Chapter 8, � III(C) (Nov. 9, 1999). The Agency shall provide Complainant with notification that it is processing the disability claim as subsumed within the class action. A copy of that notice shall also be provided to the Commission's Compliance Officer as noted below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
June 25, 2013
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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