Martha Cosper, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionMay 16, 2007
0120070827 (E.E.O.C. May. 16, 2007)

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

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