0120070827
05-16-2007
Martha Cosper, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Martha Cosper,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120070827
Hearing No. 340-2005-00673X
Agency No. 1F927002305
DECISION
On November 27, 2006, complainant filed an appeal from the agency's
November 20, 2006, final action concerning her 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. 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 action.
Complainant alleged discrimination on the basis of retaliation for prior
EEO activity when the agency delayed her return to work from January 3,
2005 to February 7, 2005.1
Complainant was employed as a Mail Handler for the agency's Anaheim,
California Processing and Distribution Center. The record reflects
that from August 29, 2003 to January 3, 2005, complainant was on leave
due to an incident where a co-worker allegedly looked at her crotch and
breasts. After the 16 months complainant was on leave, her therapist
(Dr. A) stated that complainant could return to work. In a letter dated
December 23, 2004, Dr. A requested that complainant return to work, but
medically proscribed her from working with her prior supervisor (S1).
Dr. A stated that since complainant had conflicts with S1, it would be in
her best interest to have limited contact with S1. The record reflects
that according to agency policy, the Medical Unit had to receive medical
documentation from any employee who had been off duty due to a medical or
psychological condition for more than 21 days, before returning to work.
An agency physician (Dr. J) reviewed complainant's request to return to
work and issued his decision disapproving the request for restrictions.
However, Dr. J directed that the agency's Personnel Office should
determine whether there was an issue with S1; if so, then he would
recommend complainant's request for work hours and limited contact with
S1.
Dr. J's letter was forwarded to the Plant Manager (PM), who contacted
an agency Labor Relations Specialist (L1). L1 contacted Dr. J, and
then found that complainant had made no formal complaints against S1 in
connection with her extended leave. L1 then reported his findings to
Dr. J, who pursuant to agency procedure, issued a letter to a contract
nurse with instructions regarding complainant's return to work request.
Dr. J recommended that the request to limit contact with S1 should
not be considered from a medical standpoint, but the request to work
certain hours should be considered from an administrative standpoint.
L1 then met with the PM to implement the recommendation and found that
the hours complainant requested would maximize her contact with S1,
nor were the hours part of her regular schedule. As such, L1 and the
PM discussed giving complainant the option of working different hours
to offer minimal to no contact with S1. On February 2, 2005, the PM
issued a letter to complainant explaining these options and asking that
she contact him regarding her preference. However, complainant did not
contact the agency, and on February 7, 2005 she appeared for work at
the beginning of her regular schedule.
Believing she was the victim of discrimination, complainant sought
EEO counseling and filed a formal complaint on April 4, 2005 alleging
retaliation when she was not returned to work on January 3, 2005.
The agency accepted the retaliation issue for investigation in a letter
dated May 23, 2005. At the conclusion of the investigation, complainant
was provided 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 pursuant to the agency's Motion for a Decision
Without a Hearing that the complaint did not warrant a hearing and
over the complainant's objections, issued a decision without a hearing
on September 27, 2006. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that she was
subjected to discrimination as alleged.
The AJ adopted the agency's Motion for Decision Without a Hearing, and
found the Motion correctly stated the material facts and applicable
legal standards. Initially, the AJ found that complainant failed to
establish a prima facie case of reprisal, as she did not demonstrate
a causal connection between her prior EEO activity and the identified
adverse actions of the agency. The AJ noted that complainant's prior
EEO activity began in 1997, and her most recent EEO complaint was filed
on November 3, 2003. However, the AJ found that the alleged incidents
occurred starting on January 3, 2005, which was one (1) year and two (2)
months after the most recent EEO activity. In addition, the AJ found that
even if complainant had established a prima facie case of retaliation,
she failed to establish that the agency's actions were pretextual and
were taken due to retaliation. In so finding, the AJ noted that between
January 3, 2005 and February 7, 2005, the agency's management was in
contact with each other to make arrangements regarding complainant's
accommodation requests. The AJ found that during this time, the agency
clarified the letters of complainant's physician, compared complainant's
work schedule with those of co-workers and developed alternative work
schedules. The AJ also noted that L1 drafted a letter to complainant
requesting that she contact him regarding the work alternative proposed by
the agency; complainant did not respond. The AJ found that complainant
did not cite any facts which support her allegations that the agency's
actions were "riddled with contradictory statements." As such, the AJ
found that complainant did not demonstrate that the agency's actions
were motivated by retaliation when her return to work was delayed.
Addressing complainant's allegation of disability discrimination, the
AJ initially found that complainant was a qualified individual with
a disability. The AJ found that complainant had an impairment which
substantially limited her in the major life activity of working, and
she was a qualified individual as she was able to perform the essential
functions of her position. However, the AJ found that the agency
did not fail to reasonably accommodate complainant when she was not
returned to work until February of 2005. The AJ found the record was
undisputed that complainant requested an accommodation to have minimal
contact with S1, and submitted a proposed schedule. AJ's Decision at 4.
The schedule proposed by complainant would have overlapped with S1's
schedule and would have maximized the contact with her, and as such, the
agency compared their schedules and offered complainant an alternative
schedule which minimized their contact. However, the AJ found that
complainant did not respond to the agency's proposal. As such, the AJ
concluded that complainant proffered no evidence which suggested that
the agency acted in bad faith during the delay in her return to work.
The AJ found that the agency's delay in returning complainant to work in
2005 was "not unreasonable" as agency management examined, compared and
developed work schedule options to which complainant did not respond.
As such, the AJ found that the agency did not violate the Rehabilitation
Act and granted the agency's Motion for a Decision Without a Hearing.
The agency then issued a final action, implementing the AJ's decision.
On appeal, complainant alleged that the AJ erred in issuing a decision
without a hearing, as genuine issues of material fact existed.
Complainant alleged that the AJ's decision should be vacated and
remanded for a hearing. In response, the agency alleged that there
were no genuine issues of material fact and the AJ's decision should
be affirmed. The agency alleged that the undisputed facts determined
that pursuant to complainant's request to return to work, the agency
processed the request as fast as it could and gave her the accommodations
she requested. The agency alleged that there was no evidence that the
agency's articulated reasons for its actions were pretextual in nature.
In addition, the agency alleged that while complainant is not covered by
the Rehabilitation Act, in any event, the agency did not fail to provide
her with a reasonable accommodation.
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. See 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.2
We find that it was appropriate for the AJ to issue a decision without
a hearing on this record. Having reviewed the evidence and drawing
all justifiable inferences in the non-moving party's favor, we find no
genuine issue of material fact which needed to be resolved at a hearing.
Of course, the parties are in disagreement about certain facts, but we
do not consider these facts to be "material," meaning, they are not those
which have the potential to affect the outcome of the case. Furthermore,
the AJ did not impermissibly weigh any conflicting evidence, and he
based his decision on a record that was adequately developed. The AJ also
did not rule in favor of the agency without first ensuring complainant
an opportunity to respond to the agency's Motion. Although we do not
normally favor summary decisions that adopt in whole a party's Motion
for a decision without hearing, in this case, we find no harmful error
in the AJ's actions.
Addressing complainant's allegation of retaliation regarding the agency's
delay in returning her to work in 2005, we initially concur with the
AJ's finding that complainant failed to establish a prima facie case
of retaliation. The record reflects that complainant's most recent EEO
activity was in November of 2003, and the events at issue occurred in
early 2005. As found by the AJ, the record lacks evidence establishing a
causal connection between complainant's prior EEO activity and the delay
in returning her to work, due to the more than one (1) year between the
activity and the agency's action.
Although complainant did not allege in her complaint that the agency
failed to accommodate her when it delayed her return to work, the AJ
included this issue in his decision.3 As such, we will address the AJ's
analysis on this issue. We find that, assuming, arguendo, complainant
established that she is an individual with a disability, there is no
evidence rebutting the agency's insistence that it did not unlawfully deny
her accommodation requests.4 Complainant has not shown by a preponderance
of evidence that she was denied a reasonable accommodation involving
returning her to her position following her return to work request.5 The
evidence establishes that the agency did accommodate complainant following
her notification to the facility's management, via a letter from Dr. A,
that she could return to work in January of 2005 with certain hours and
no contact with S1. As found by the AJ, the record indicates that the
agency considered Dr. A's letter and then began a process to determine
whether the accommodations complainant requested could be granted.
Ultimately, the agency found that the proposed schedule complainant
requested would maximize her contact with S1. Instead the agency proposed
complainant returning to her usual schedule, which would provide little
contact with S1. However, complainant did not respond to the agency's
counter proposal. The evidence establishes that complainant returned to
work on February 7, 2005, working her schedule from prior to the leave
of absence.
We concur with the AJ's finding that complainant failed to proffer any
evidence which suggests that the agency acted in bad faith or otherwise
discriminated against her during the one (1) month delay in her return
to work. We remind complainant that she carries the burden of proving
the allegations she raised by providing sufficient evidence to allow a
reasonable fact-finder to conclude in her favor. She has not met this
burden; therefore, we find that she has failed to show that she was
retaliated against with regard to the alleged delay in returning her
to work, or that she was denied reasonable accommodation by facility
management.
Accordingly, for the reasons stated herein, the Commission AFFIRMS the
agency's final action finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
____05/16/07_______________
Date
1 We note that the Administrative Judge included the issue of whether the
agency failed to accommodate complainant at the April 4, 2006 pre-hearing
conference and in his analysis in the decision. However, as stated by
the agency, the issue of accommodation was not alleged by complainant in
the formal complaint, nor was that issue among the issues accepted by the
agency for investigation. The only issue alleged by complainant in the
formal complaint was whether the agency retaliated against her when her
return to work was delayed between January 3, 2005 and February 7, 2005.
We note that the agency objected to the inclusion of the accommodation
issue in its Motion for a Decision Without a Hearing.
2 In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
3 We note that the agency addressed the merits of the accommodation issue
in its Motion for a Decision Without a Hearing, although it objected to
the AJ's inclusion of this issue.
4 We note that for the purposes of analysis, and without specifically
finding, we assume that complainant is an individual with a disability.
5 We note that complainant has not demonstrated that returning her
to work, in January of 2005, at the hours she requested was the most
effective accommodation for the psychological condition which caused
her to take a lengthy leave of absence from the agency.
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0120070827
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120070827