0120103517
02-17-2011
Nadine Melton-Tyson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Nadine Melton-Tyson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120103517
Hearing No. 480-2009-00420X
Agency No. 4F-900-0002-09
DECISION
On August 26, 2010, Complainant filed an appeal from the Agency's August
12, 2010, final decision 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the
appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are whether the Agency properly determined that
Complainant had not been discriminated against based on her age and
disability when she was reassigned to a different facility and different
Tour of Duty, and whether it properly determined that she had not been
denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Mail Processing Clerk at the Agency's John Marshall/Hancock Station and
at the Los Angeles, California Processing & Distribution Center (P&DC).
On December 18, 2008, Complainant filed an EEO complaint (later amended)
alleging that the Agency discriminated against her on the bases of
disability (unspecified, back issues, sleep deprivation) and age (59)
when:
1. On September 15, 2008, Complainant received notification that she would
be reassigned from her limited-duty job at the John Marshall Station to
a clerk position at the Los Angeles P&DC;
2. On October 27, 2008, Complainant received notification that she was
moved from Tour 2 to Tour 1, and she was given duties she is unable to
perform;
3. On February 5, 2009, Complainant was not accommodated in accordance
with her medical restrictions, and
4. On March 3, 2009 (and possible subsequent dates), Complainant was
not accommodated in accordance with her medical restrictions in that
she has been moved back and forth between assignments.
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
requested a hearing.
On June 30, 2010, the Agency submitted a Motion to Dismiss Complainant's
Request for a Hearing on the basis that Complainant had failed to
comply with the AJ's Motion to Compel, issued when Complainant was
not responsive to discovery requests for more information about her
complaint. As a sanction for Complainant's non-responsiveness to the
Agency's Interrogatories and Requests for Admissions and for Production
of Documents, the AJ dismissed Complainant's hearing request and remanded
the complaint to the Agency for the issuance of a final agency decision
on the record.
The Agency then issued a final decision pursuant to 29 C.F.R. �
1614.110(b). In its decision the Agency found that Complainant was
not an individual with a disability as defined by the Rehabilitation
Act. It further found that she was not a qualified individual with
a disability, as she had not demonstrated that she could perform the
functions of her position with or without a reasonable accommodation.
Assuming she was a qualified individual with a disability, the Agency
found that it had reasonably accommodated Complainant in that it had given
Complainant a Modified Job Offer (Limited Duty) that was in compliance
with her restrictions on record with the Agency at the time.
The Agency also found that Complainant had not established a prima facie
case of age or disability discrimination because she had not presented
evidence of any comparative employees, not of her protected bases, who had
been treated more favorably. Assuming Complainant had established a prima
facie case of age or disability discrimination, the Agency articulated
legitimate, nondiscriminatory reasons for its actions. It stated that
Complainant was reassigned from the John Marshall/Hancock Station to the
LA P&DC along with a number of other clerks in the District, pursuant to
the Function 4 Migrations. Function 4 Migrations required stations that
were over complement to excess some of their employees to stations that
were under complement. All employees who did not have a bid position,
including unassigned, limited-duty, and permanent light-duty employees,
were reassigned to the LA P&DC. The job offer made to Complainant had
been coordinated with the National Reassessment Program and the Limited
Duty Coordinator. Complainant was transferred to Tour 1 from Tour
2 because Tour 1 had necessary work to be performed. Additionally,
there was testimony that the LA P&DC was approximately one mile from
Complainant's former work location. The Agency found that Complainant
had not shown the Agency's reasons for its actions to be pretext
for discrimination. The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
Complainant thereafter filed the instant appeal.
CONTENTIONS ON APPEAL
In her contentions on appeal, Complainant argued that she should not have
been taken off the day shift (Tour 2) because that was in violation of
a previously signed EEO settlement agreement, signed 15 years previous.
She claimed she needed to work the day shift in order to accommodate her
medical condition of sleep deprivation. With her appeal, Complainant
submitted several documents not contained in the Investigative File,
including letters from her physicians regarding her medical restrictions,
and an EEO Settlement Agreement dated January 12, 1995.
In response to Complainant's argument in support of her appeal, the
Agency submitted a statement in which it urged the Commission to uphold
its final agency decision. It argued that the documents Complainant
submitted for the first time on appeal should not be considered, as
the documents were available at the investigative and hearings stage,
and were not produced by Complainant at that time.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (November 9, 1999) (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").
ANALYSIS AND FINDINGS
We first affirm the AJ's Order in which she dismissed Complainant's
hearing request and remanded the complaint to the Agency for a decision
on the record. The Commission finds that the AJ did not abuse her
discretion by dismissing Complainant's request for a hearing. See 29
C.F.R. � 1614.109(e). A review of Complainant's responses to the Agency's
discovery requests shows that Complainant's vague, summary answers were
not fully responsive to the requests for information sought by the Agency,
which was relevant to adjudicating the complaint. The AJ had issued a
Motion to Compel, yet Complainant did not expound upon the information.
We also note that Complainant had claimed that she was reassigned in
violation of her Office of Workers' Compensation Programs (OWCP) claim and
her EEO settlement agreement, the subject of which was the shift to which
Complainant would be assigned. The Agency properly notified Complainant
by letter dated March 24, 2009, that if she were alleging a violation of
a previous EEO settlement agreement she needed to contact the EEO Area
Manager and identify the settlement agreement which had been breached and
the nature of the breach. By letter dated April 13, 2009, Complainant
notified the Agency Area EEO Manager of her allegation of breach.1
Reasonable Accommodation
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. 29 C.F.R. ��
1630.2(o) and (p). After having established that he is an individual
with a disability, a complainant must still show that he is "qualified"
within the meaning of 29 C.F.R. � 1630.2(m). A "qualified" individual
with a disability is one who satisfies the requisite skill, experience,
education and other job related requirements of the employment position
such individual holds or desires, and who, with or without reasonable
accommodation, can perform the essential functions of the position.
See 29 C.F.R. � 1630.2(m). A reasonable accommodation may consist of
modifications or adjustments to the work environment or to the manner
or circumstances under which the position held is customarily performed
that enables a qualified individual with a disability to perform the
essential functions of that position. 29 C.F.R. � 1630.2(o)(ii).
Assuming, without so finding, that Complainant is an individual with a
disability, we find that the Agency did not violate its obligations under
the Rehabilitation Act to reasonably accommodate Complainant's known
limitations. The record contains an OWCP status report dated April 18,
2008, which detailed Complainant's limitations, including a seven pound
lifting restriction. The October 27, 2008, Offer of Modified Assignment
(Limited Duty) comports with the restrictions on file with the Agency.
The documentation available to the Agency at the time it made the Offer
of Modified Assignment (Limited Duty) did not appear to include any
limitation on the timing of Complainant's Tour of Duty.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of
discrimination, Complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). Complainant carries the initial burden
of establishing a prima facie case by demonstrating that he or she 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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802
n. 13. 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 prove, by a preponderance
of the evidence, that the reason proffered by the Agency was a pretext for
discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming Complainant has established her prima facie cases of age
and disability2 discrimination, we find that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. The Agency
presented evidence and testimony that it transferred Complainant from
the John Marshall / Hancock Station to the LA P&DC pursuant to its
Function 4 Migrations, and in coordination with the National Reassessment
Program3 and the Limited Duty Coordinator. A number of other clerks
were also reassigned to the LA P&DC under this program. Complainant
has not shown that the Function 4 Migrations program was pretext for
discrimination against her based on her age or disability. The Agency
also presented testimony that employees without bid positions at the
John Marshall/Hancock Station, such as Complainant, were transferred
to the LA P&DC. We find that Complainant has not shown that the Agency
intentionally discriminated against her based on her age or disabilities.
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
final decision.
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
February 17, 2011
Date
1 The record does not contain any indication of the nature of subsequent
action taken with respect to the breach allegation. Further, to the
extent that Complainant believes the Agency to be in violation of its
obligations regarding her OWCP claim, she is advised to contact OWCP,
as the Commission has no jurisdiction to resolve such disputes.
2 We assume, for the purposes of analysis only, without so finding,
that Complainant is an individual with a disability.
3 There is no indication in the record that Complainant was transferred to
the LA P&DC as a result of an evaluation under the National Reassessment
Program, as that process is described in our decision in McConnell, et
al. v. U. S. Postal Service, EEOC Appeal No. 0720080054 (Jan. 14, 2008)
(affirming an AJ's decision to grant class certification to "all permanent
rehabilitation employees and limited duty employees at the Agency who have
been subjected to the National Reassessment Program from May 5, 2006, to
the present, allegedly in violation of the Rehabilitation Act of 1973.")
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0120103517
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103517