0120092889
04-21-2011
Mark D. Van Conant, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Mark D. Van Conant,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120092889
Hearing No. 471-2008-00116X
Agency No. 4J-480-0012-08
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s May 15, 2009 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency’s Post Office in Southfield, Michigan.
On February 14, 2008, Complainant filed a formal complaint alleging that
the Agency discriminated against him on the basis of disability when,
from July 1, 2007 to October 2007, he was denied the opportunity to
work overtime.
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. On May 7, 2009, the Administrative Judge
(AJ) granted the Agency’s unopposed motion and issued a decision
without a hearing.
In her decision, initially, the AJ determined that Complainant had
not established a prima facie case of disability discrimination.
Nonetheless, the AJ assumed arguendo that Complainant had established
a prima facie case of discrimination and found that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, Complainant’s supervisor (S1) stated that the Agency could
not grant Complainant overtime off the 12-hour Overtime Desired List
(ODL). S1 asserted that employees working overtime off the ODL must
be able to case, carry and deliver their own route plus case, carry,
and deliver four hours of another carrier’s route. In addition, the
carrier must be able to perform a walking route and be able to drive.
Complainant’s restrictions at that time did not allow him to drive;
therefore, allowing him to work overtime from the ODL would have violated
his restrictions.
On October 2, 2007, Complainant informed the Agency that he could now
drive, but he did not provide updated medical documentation releasing
him to drive and work overtime until two weeks later. After Complainant
submitted the updated medical documentation, he was permitted to work
overtime.
Next, 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.
On appeal, Complainant contends that management ignored him when
he informed them that his restrictions had changed. Additionally,
Complainant argues that management changed his starting time several
times to mess with him. Accordingly, Complainant requests that the
Commission reverse the final order. The Agency requests that the Agency
affirm the final order.
ANALYSIS AND FINDINGS
Standard of Review
The Commission 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).
The courts have been clear that summary judgment is not to be used
as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768
(1st Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, “there is a need for strident
cross-examination and summary judgment on such evidence is improper.”
Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (Feb. 24, 1995).
After a review of the record, the Commission finds 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 record has been adequately developed, Complainant
was given notice of the Agency’s motion to issue a decision without
a hearing, he was given a comprehensive statement of undisputed facts,
he was given an opportunity to respond to the motion and statement of
undisputed facts, and he had the opportunity to engage in discovery.
Additionally, the Commission finds that Complainant’s arguments on
appeal are insufficient to create a dispute of material fact. Under these
circumstances, the Commission finds that the AJ’s decision without a
hearing was appropriate.
Disparate Treatment
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the Agency denies that its decisions were motivated by Complainant's
disability and there is no direct evidence of discrimination, the
Commission applies the burden-shifting method of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S 792 (1973). See Heyman
v. Queens Village Comm. for Mental Health for Jamaica Cmty Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34
(D.C.Cir. 1999). Under this analysis, in order to establish a prima
facie case, Complainant must demonstrate that: (1) he is an “individual
with a disability”; (2) he is “qualified” for the position held
or desired; (3) he was subjected to an adverse employment action; and
(4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). The burden of production then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. If the Agency is successful, the burden reverts back
to Complainant to demonstrate by a preponderance of the evidence that
the Agency's reasons were a pretext for discrimination. At all times,
Complainant retains the burden of persuasion, and it is his obligation
to show 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); U.S. Postal Serv. Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983).
For purposes of this decision, the Commission will assume, without so
finding, that Complainant is an individual with a disability entitled
to coverage under the Rehabilitation Act. The Commission finds that the
Agency has articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, Complainant was never denied the opportunity to
work overtime; rather, he was unable to complete the overtime available
to all employees on the ODL without violating his medical restrictions.
ROI, S1’s Aff., at 1. When Complainant submitted updated medical
documentation indicating that he could drive, he was granted overtime
assignments offered to employees on the ODL. Id. at 2. Further, S1
affirmed that she could neither create overtime opportunities without
offering the same opportunities to those on the ODL nor offer Complainant
overtime that was not needed. Id. at 3.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, 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. Construing the evidence
in the light most favorable to Complainant, the Commission finds that
Complainant has not shown that any of the Agency’s actions were
based on discriminatory animus or that the reasons articulated by the
Agency for its actions were mere pretext to hide unlawful discrimination.
Accordingly, the Commission finds no reason to disturb the AJ’s issuance
of a decision without a hearing.
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
April 21, 2011
Date
2
0120092889
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092889