0120101149
08-01-2011
Mariano C. Tedana, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Mariano C. Tedana,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120101149
Hearing No. 450-2009-0214X
Agency No. 1G-761-0043-08
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s December 22, 2009 final order concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Processing Clerk at the Agency’s Processing and Distribution
Center (P&DC) in Fort Worth, Texas. On August 28, 2008, Complainant filed
an EEO complaint alleging that the Agency discriminated against him on
the bases of race (Hispanic/Asian), disability (heart, lungs, knee, and
back), age (55), and in reprisal for prior protected EEO activity when1:
1. On March 31, 2008 and April 8, 2008 to April 11, 2008, Complainant
was exposed to hazardous materials and the supervisor (S1) ignored his
doctor’s note and failed to provide proper safety equipment to work
in a hazardous area.
2. On or about August 19, 2008, S1 attempted to work him outside of
his restrictions.
The Agency dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. The Agency determined that S1 instructed
Complainant to work on the flat sorter belt, but after speaking with
Complainant’s counselor, he withdrew that instruction. The Agency
found that Complainant did not assert that he was worked outside of his
restrictions. The Agency concluded that Complainant was not subjected
to an adverse action nor was he denied any entitlement in relation to
a term, condition, or privilege of employment.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant's objections,
the AJ assigned to the case granted the Agency's motion for a decision
without a hearing and issued a decision on December 9, 2009.
Initially, the AJ determined that Complainant had not established a prima
facie case of discrimination on the alleged bases. Nonetheless, the AJ
assumed arguendo that Complainant had established a prima facie case of
discrimination and found that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. On March 24, 2008, a mail
truck caught fire during a traffic accident. The Fort Worth P&DC
processed approximately three hampers of the damaged hampers in an
open-air, well-ventilated warehouse. On March 31, 2008, Complainant
returned to work after recovering from an upper respiratory infection and
told S1 that he could not work the burnt mail. S1 initially requested
medical documentation to support this request, but remembered that
Complainant had been absent with respiratory problems and told him that he
did not have to work the burnt mail. Complainant brought documentation
the following day and was not required to work the burnt mail. The AJ
concluded that Complainant made no request for a reasonable accommodation,
nor did S1 consider Complainant’s request to not work the damaged
mail a request for reasonable accommodation although he did not ask
Complainant to work the damaged mail. Additionally, the AJ determined
that all employees were provided masks and gloves and were instructed
by the occupational nurse how to use the safety equipment.
The AJ determined that Complainant had presented no evidence establishing
that the Agency’s reasons were pretextual. As a result, the AJ
found that Complainant had not been discriminated against as alleged.
The Agency subsequently issued a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that he has established a prima facie
case of discrimination. Complainant alleges that the record does not
support the AJ’s finding that he was not treated differently than other
similarly situated employees not of his protected group. Additionally,
Complainant contends that the AJ erred by not deciding the issue that
the Agency dismissed during the investigation. As a result, Complainant
requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
Decision without a Hearing
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which required
a hearing and therefore the AJ's issuance of a decision without a hearing
was appropriate. The Commission concludes that, even assuming all facts
in favor of Complainant, a reasonable fact finder could not find in his
favor, as explained below. Therefore, no genuine issues of material
fact exist. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.
Dismissal of Claim (2)
As an initial matter, the Commission shall address the Agency’s
dismissal of claim (2) for failure to state a claim. The Commission
finds that the Agency properly dismissed this claim for failure to state
a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the
record indicates that Complainant alleged that S1 attempted to work him
outside of his restrictions. However, Complainant does not allege that
he actually performed any work outside of his restrictions, and after
speaking with Complainant’s counselor, S1 withdrew that instruction.
Thus, Complainant has not shown that he suffered a specific harm or
loss to a term, condition, or privilege of employment. Accordingly,
the Commission affirms the Agency’s dismissal of claim (2).
Disparate Treatment
To prevail in a disparate treatment claims 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, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 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 Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, the Commission finds that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
S1 affirmed that the Fort Worth P&DC received wet, burnt mail to process
after a mail truck was involved in a highway accident. ROI, at 193.
The medical and safety units determined that the mail was nonhazardous
and without mold and employees assigned the task worked the mail in an
open-air, well-ventilated warehouse. Id. at 209. S1 stated that he
initially instructed Complainant to work the burnt mall, but remembered
that Complainant had respiratory problems and told him he did not have to
work the mail. Id. at 193. Complainant brought in medical documentation
the next day; however, S1 informed him it was not necessary. Id.
S1 affirmed that when it became too cold outside, the Agency moved the
one remaining mail hamper back inside for processing. Id. S1 noted
that Complainant was probably 25 feet away from the hamper of mail, but
at that point it was very hard to smell the burnt mail unless one was
directly next to the hamper. Id. Further, S1 added that all employees
had access to safety gloves and masks and the occupational nurse had
instructed employees on proper safety equipment usage. Id.
Complainant now bears the burden of establishing that the Agency's stated
reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec'y
Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this
directly by showing that the Agency's proffered explanation is unworthy
of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
The Commission finds that the record is devoid of any 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 has failed to carry this burden.
Accordingly, the Commission finds that Complainant has failed to show
that he was subjected to discrimination or reprisal as alleged.
Denial of Reasonable Accommodation
To the extent that Complainant is alleging that he was denied reasonable
accommodation, the Commission notes that the Rehabilitation Act of
1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that Complainant was
denied a reasonable accommodation, Complainant must show that: (1)
he is an individual with a disability, as defined by 29 C.F.R. §
1630.2(g); (2) he is a qualified individual with a disability pursuant
to 29 C.F. R. § 1630.2(m); and (3) the Agency failed to provide a
reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915.002 (Oct. 17, 2002). 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.
See 29 C.F.R. §§ 1630.2(c) and (p). For purposes of analysis, the
Commission shall assume, without so finding, that Complainant is a
qualified individual with a disability.
Upon review of the entire record in this case, the Commission finds that
the Agency’s efforts were sufficient to meet its obligations under the
Rehabilitation Act. The record indicates that S1 initially instructed
Complainant to work the burnt mail, but upon realizing Complainant’s
condition, told Complainant that he did not have to work the mail. ROI,
at 193. Further, the record reveals that Complainant had access to
safety equipment to protect him from the smoky odor of the burnt mail.
The record indicates that Complainant did not avail himself of the
available safety equipment. ROI, at 243, 267. The Commission finds
that the Agency satisfied its obligations under the Rehabilitation Act.
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 (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 (Nov. 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
August 1, 2011
Date
1 Complainant withdrew sex (male) as a basis of discrimination during
the investigation stage. Report of Investigation (ROI), at 70.
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0120101149
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101149