0120102757
12-10-2010
Oksun Shin, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Oksun Shin,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120102757
Hearing No. 550-2010-00022X
Agency No. 4F-926-0048-09
DECISION
On June 18, 2010, Complainant timely filed an appeal from the Agency's May
21, 2010, 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. 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 order.
ISSUES PRESENTED
The issue presented are: (1) whether the EEOC Administrative Judge (AJ)
properly issued a decision without a hearing; and (2) whether the AJ
properly found that Complainant did not establish race, national origin,
disability, or reprisal discrimination in connection with a change in
her limited-duty assignment and being required to medically certify that
she was able to perform a position on which she had bid.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Automated Markup Clerk at the Agency's Santa Ana, California
Processing and Distribution Center. Clerks work at large mail processing
machines called Flat Forwarding Terminals (FFTs) processing flats and/or
Combined Input Output Subsystem (CIOSS) mail that has been rejected by
mail processing machines.
On November 30, 2009, Complainant filed an EEO complaint alleging
that the Agency discriminated against her on the bases of race (Asian),
national origin (Korean), disability, and in reprisal for prior protected
EEO activity when on December 1, 2008, Complainant was given an amended
Limited Duty job offer and sent home after Complainant maintained that
the job offer was outside her medical restrictions. Complainant further
alleged that the Agency subjected her to discrimination on the basis of
disability and in retaliation for prior EEO activity when, on March 18,
2009, the Agency requested that Complainant medically certify her ability
to perform the duties of the position on which she bid.
In an investigative affidavit, Complainant stated that she had limited
use of her upper extremities since she had an on-the-job injury in
December 2005. Affidavit A, p. 1. Complainant further averred that she
cannot lift over five pounds. Complainant stated that in December 2008,
she requested a schedule change to start work at 7:00 a.m. for one week,
and management approved the requested schedule change. Complainant
further stated that after being approved to work the temporary schedule,
she reported to work at 7:00 a.m., and the Manager approached her and
inquired if Complainant's schedule change was for one week or for one day.
Complainant stated that after she replied that the change was for one
week, the Manager presented her with a new job offer on the basis that
there was a need for her to sort flat mail. Complainant further stated
that the Manager informed her that a co-worker was assigned to key CIOSS
mail at 7:00 a.m., and Complainant's medical restrictions allowed her
to key flats. Complainant further stated that when she stated that her
physician had to review the job offer before she accepted the offer,
the Manager stated that Complainant was refusing the job offer.
Complainant stated that when she told management that she thought that
the new job offer was outside of her medical restrictions, management
said that keying letter-size mail and flat mail were the same tasks and
sent her home. Affidavit A, pp. 1, 2. Complainant stated that flat
mail is heavier and larger than letter-size mail. Affidavit A, p. 2.
Complainant stated that her physician was willing to allow Complainant
to key flats for fifteen minutes per hour to see if her condition would
allow her to do so, but management failed to assign her to key flats.
Complainant stated that she returned to work on December 5, 2008, and
worked her previous CIOSS job assignment. She stated that management
now will not let her work on flat mail because it is afraid that she
will aggravate her injury.
Complainant's supervisor (S1) (Vietnamese American) stated that on
December 1, 2008, the Agency had 13 trays of CIOSS "rejects" and 200
tubs of flats. Affidavit B, p. 4. S1 stated that because morning shifts
were required to work flats and not CIOSS mail, Complainant was asked to
process flats for the week she requested a schedule change. Affidavit B,
pp. 4, 5.
The Manager ("primarily Caucasian") stated that she developed the new
job offer in response to Complainant's request for a one-week schedule
change for her personal convenience. The Manager stated that because
of business conditions, the work performed in the hours requested by
Complainant involved the processing of a different type of mail than
Complainant processed under her previous job. The Manager stated
that the new job offer was within Complainant's medical restrictions
because the physical requirements for both types of mail processing are
identical. She stated that Complainant stated that she was incapable
of processing the type of mail featured in the new job offer, and the
Manager responded that if Complainant believed that she was incapable of
performing the duties of the new job offer, she was claiming that her
medical restrictions on file were inaccurate, and she could not allow
her to work until she submitted current medical restrictions.
"I further explained that, as managers, as soon as we have cause to
believe the written medical documentation on file is not accurate, we
cannot allow an employee to perform any duties until updated accurate
documentation has been received," the Manager stated. Affidavit C,
p. 2. The Manager stated that after Complainant insisted that she could
not perform the duties of the new job offer, she was sent home with a
request that she provide the Agency with updated medical documentation.
The Manager stated that when Complainant indicated that the medical
restrictions on file were not accurate, she was obligated not to allow
Complainant to work until the Agency had her current and accurate medical
restrictions. Affidavit C, p. 1.
The Acting Manager (Hispanic) stated that in March 2009, Complainant bid
for a CFS job with the hours of 11:00 a.m. to 7:30 p.m. Affidavit D,
p. 5. She stated that a Memorandum of Understanding dated September 1,
1987, between the American Postal Workers Union and the Agency requires
management to request updated medical documentation when an employee with
medical restrictions bids for a position. She further stated that the
agreement provides that if the employee fails to provide the requested
medical documentation, the employee must remain in her current assignment
and the next senior bidder will be declared the senior bidder. She stated
she therefore asked Complainant for updated medical documentation on
March 18, 2009.
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 AJ. Complainant timely requested a hearing.
On February 17, 2010, the Agency moved for a decision without a hearing
in its favor, to which Complainant objected.
AJ's Decision
In a decision dated May 11, 2010, the AJ determined that Complainant's
documented limitations needed to be updated in order to resolve the
inconsistency between her limitations and her physician's assertion that
processing CIOSS mail was the only task suitable for her to perform.
AJ's Decision, p. 9. Moreover, the AJ concluded that there were no CIOSS
mail processing jobs available during the morning shift for Complainant,
and Complainant refused a flat mail processing job which included core
tasks and duties which were virtually identical to her normal assignment.
Id., at 10. The AJ found that under these circumstances, management
concluded in good faith "that continuing the interactive process was
futile because Complainant refused to consider any alternative duties
within her medical restrictions." Id. With respect to the Agency's
request for Complainant to provide medical documentation when bidding on a
new position, the AJ found that there was no evidence that Complainant was
aggrieved with respect to this action, or that any other employees were
treated any differently with respect to bids. Id., at 11. The Agency
subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred when he found that she
was not subjected to unlawful discrimination. Complainant maintains that
she did not refuse the Agency's flat mail job offer, but only requested
to take the offer to her treating physician for review prior to making
a decision. Complainant's Brief, p. 1. Complainant further contends
that the Agency should have reassigned a co-worker who was assigned to
CIOSS during the morning shift to work flats so that Complainant could
work on CIOSS during the period of her temporary schedule change. Id.,
at 2. "Complainant has demonstrated that the Agency gave preferential
treatment to another employee by allowing that employee to continue
to key CIOSS mail while sending Complainant home, alleging there was a
discrepancy in her medical documentation," Complainant contends. Id.,
at 3. Complainant contends that the Agency's actions caused her to
needlessly miss four days of work. Id. The Agency did not submit a
statement on appeal.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614, at Chapter 9, � VI.B. (Nov. 9, 1999) (providing
that an AJ'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").
ANALYSIS AND FINDINGS
Summary Judgment
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 Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
We find that the AJ properly issued a decision without a hearing because
no genuine issue of material fact or need for credibility determinations
existed.
Disparate Treatment
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For instance,
to establish a prima facie case of reprisal, Complainant must show that
(1) she engaged in protected EEO activity; (2) the Agency was aware of
the protected activity; (3) subsequently, she was subjected to adverse
treatment by the Agency; and (4) a nexus exists between her protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Once a complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance of
the evidence that the Agency's reason(s) for its action was a pretext
for discrimination. At all times, Complainant retains the burden
of persuasion, and it is her obligation to show by a preponderance
of the evidence that the Agency acted on the basis of a prohibited
reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
For purposes of analysis, we assume without so finding that Complainant
is a qualified individual with a disability and has established a prima
facie case of discrimination. In this case, Agency management stated
that Complainant requested that her schedule be changed temporarily to
the 7:00 a.m. to 2:30 p.m. shift beginning on November 29, 2008, for
the purpose of personal convenience. Management stated that because
of business conditions, the work performed by the facility in the
hours requested by Complainant involved the processing of a different
type of mail than Complainant processed under her previous job offer.
Management further stated that it presented Complainant with a flat
mail processing job offer that was within Complainant's restrictions,
and the physical requirements for both CIOSS and flat mail processing
were identical. Management stated that Complainant said that she was
incapable of processing flat mail. Management further stated that it
told Complainant that if she believed that she was incapable of performing
flat mail duties, her documented medical restrictions must be inaccurate,
and she must submit updated medical restrictions before returning to
work so that the Agency could assess what duties she could perform.
On appeal, Complainant maintains that she did not refuse the Agency's
flat mail job offer, but only requested to take the offer to her treating
physician for review prior to making a decision. However, at the time
Complainant requested a schedule change, there was no documentation
to indicate that the duties of flat mail processing were inconsistent
with Complainant's medical restrictions. Although Complainant asserts
that flat mail is heavier than CIOSS mail, we note that her medical
restrictions stated that she could lift up to five pounds. There is
no evidence that the flat mail assignment involved lifting more than
five pounds. Further, while Complainant submitted documentation from
her physician in July 2008 that affirmed that she could perform the
full CIOSS duties of a Mark-up Clerk, the physician's statement did
not prohibit Complainant from other duties consistent with her medical
restrictions. On December 18, 2008, Complainant's physician reported that
Complainant could process flat mail for 15 minutes on a "trial basis,"
but there is no indication that her known restrictions at the time she
requested a schedule change were inconsistent with flat-mail processing.
Affidavit B, p. 17.
Complainant further contends that the Agency should have reassigned a
co-worker who worked CIOSS during the morning shift to another task
so that Complainant could work CIOSS during for one week. However,
the record reveals that the co-worker was assigned to work the morning
shift pursuant to a limited-duty offer that provided the co-worker with
work within her medical restrictions. Affidavit B, p. 116. We find
it unreasonable for Complainant to demand that the Agency dislodge an
employee from her limited-duty position within her restrictions so
that Complainant could have a one-week schedule change for personal
convenience. Complainant contends that the Agency gave preferential
treatment to the co-worker by allowing her to continue to key CIOSS
mail while sending Complainant home, but Complainant already had an
assignment within her restrictions and was merely seeking a temporary
schedule for personal convenience, whereas the co-worker was working in
her normal limited-duty assignment and schedule. Complainant and the
co-worker were clearly not similarly situated, and Complainant has not
shown that any other employee outside her protected classes was treated
more favorably than she was treated under similar circumstances.
Regarding the Agency's requirement that Complainant provide updated
medical documentation when bidding on a new position, the Agency stated
that it requested the documentation because a union agreement required
management to request updated medical documentation when an employee with
medical restrictions bid for a position. Complainant has not provided any
evidence that undermines the Agency's explanation. Further, Complainant
has not shown that any employee outside her protected classes was treated
more favorably than she was treated under similar circumstances.
Thus, we conclude that Complainant failed to provide any
evidence from which a reasonable fact-finder could conclude
that the Agency's articulated reasons were a pretext for unlawful
discrimination. Consequently, we find that the AJ properly found no
discrimination.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency
can show that accommodation would cause an undue hardship. 29 C.F.R. �
1630.9. As a threshold matter in a case of disability discrimination under
a failure to accommodate theory, the complainant must demonstrate that he
is an "individual with a disability." Again, for purposes of analysis,
we assume without so finding that Complainant is an individual with a
disability.
In this case, Complainant submitted medical documentation from her
physician that revealed that as of July 24, 2008, she had medical
restrictions that prevented her from lifting more than five pounds,
reaching above the shoulder, climbing/kneeling, or standing or walking
more than two hours per days. Affidavit B, p. 11. The physician
further noted that Complainant could perform the full duties of a Mark-up
Clerk Automated position "per job description" of July 18, 2008. Id.
The record reveals that on July 18, 2008, Complainant accepted a
modified assignment offer dated July 18, 2008. Exhibit 5. The accepted
assignment featured keying CIOSS mail for eight hours per day, which
required sitting or standing for eight hours per day, walking for one
hour per day, fine manipulation and grasping for eight hours per day,
minimal reaching, and lifting up to five pounds. Id.
We note that it is undisputed that the Agency provided Complainant with
a reasonable accommodation within her restrictions by assigning her to
process CIOSS mail. This accommodation continued until Complainant asked
for a one-week change of schedule for personal convenience on or about
November 29, 2008. AJE 3, p 4. In order to grant Complainant's request
for an earlier schedule, the Agency sought work within Complainant's
medical restrictions for the one-week period. While Complainant submitted
documentation from her physician that affirmed that she could process
CIOSS mail, this documentation did not indicate that Complainant could
not process flat mail. In fact, Complainant acknowledged that the flat
mail assignment offered to her involved tasks that were essentially the
same as the tasks Complainant performed in her normal CIOSS position.
Specifically, Complainant stated: "When I key CIOSS mail, I place
a stack of letters in front of me, type in the required information,
affix the label, and turn the letter face down in front of the stack so
I can key the next letter. When I key flats, I place a stack of flats
in front of me, type in the required information, affix the label,
and toss the flat into a tub on the side so I can key the next flat."
AJE 3, p. 6. Complainant further stated that she did not know what
percentage of flat mail was heavier than five pounds. Id. There is
no evidence that processing flat mail violated Complainant's medical
restrictions. As such, we find that the Agency offered Complainant a
reasonable accommodation when it reassigned her to process flat mail
during the period of her requested schedule change.
We further note that while a protected individual is entitled to
a reasonable accommodation, she is not necessarily entitled to the
accommodation of choice. See Castaneda v. U.S. Postal Serv., EEOC
Appeal No. 01931005 (Feb. 17, 1994). The employer may choose among
reasonable accommodations so long as the chosen accommodation is
effective. U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). In this
case, the Agency was already providing Complainant with an effective
reasonable accommodation by assigning her to process CIOSS mail.
Despite the provision of this accommodation, Complainant asked to work
an earlier shift for one week for personal convenience. As such, the
Agency was not obligated to grant Complainant a temporary schedule of
choice along with her assignment of choice, although it nonetheless made
an effort to do so. Therefore, we find that, even viewing the facts
in the light most favorable to Complainant, she failed to provide any
evidence from which it could be reasonably concluded that she was denied
a reasonable accommodation.
CONCLUSION
Accordingly, 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 AJ'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 (November 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
December 10, 2010
Date
2
0120102757
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102757