0120112467
01-31-2013
Pierce C. Cole, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Pierce C. Cole,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120112467
Hearing No. 440-2009-00173X
Agency No. 1J-603-0011-09
DECISION
On March 25, 2011, Complainant filed an appeal from the Agency's February 24, 2011, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's South Southern Processing and Distribution Center facility in Bedford Park, Illinois.
On February 20, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), and disability (Lumbar Herniated Disc) when1, on October 24, 2008, Complainant was notified of his reassignment from Tour 2 to Tour 3 and his subsequent request to remain on Tour 2 was denied.
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's September 9, 2009, motion for a decision without a hearing and issued a decision without a hearing on February 1, 2011.
The AJ found that there was no dispute that Complainant had been assigned a limited duty assignment on Tour 2 which is from 4:00 a.m. to 12:00 p.m. The Agency had to undergo realignment. Specifically, in order to improve efficiency the managers at the facility decided to reduce the number of tours performing mail processing operations from three to two. This change eliminated the Automation Section on Tour 2 and reassigned those positions to Tours 1 and 3, reducing staffing requirements. Complainant's position was eliminated along with 54 other clerk positions. The employees needed to be reassigned to positions in Tours 1 and 3. The AJ noted that there were some mail handlers who remained on Tour 2. Complainant's new assignment was on Tour 3. Complainant asked to remain on Tour 2 but his request was denied.
The AJ then found that Complainant failed to establish his claim of discrimination. The AJ held that the Agency articulated a nondiscriminatory reason for Complainant's reassignment. Specifically, the Agency indicated that in order to maximize efficiency the Agency, it eliminated as many jobs from Tour 2 as it could. The AJ noted that the Agency produced evidence that the realignment affected employees of all races, genders and ethnicities, disabled and non-disabled alike. The AJ then found that Complainant has not produced any evidence that he was treated more adversely than fellow mail clerks outside his protected class. Complainant has not offered other evidence that the Agency's explanation for his reassignment is not worthy of belief. In addition, the AJ noted that, with respect to the mail handler positions that remained on Tour 2, the Agency showed that these positions involved heavy exertion. Further, the AJ found that, due to his medical limitations, Complainant would not perform the mail handler positions that were on Tour 2. As such, the AJ concluded that Complainant failed to show that the reassignment and failure to provide an assignment on Tour 2 constituted discrimination in violation of Title VII and/or the Rehabilitation Act.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
Summary Judgment
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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). 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 persuade the fact finder 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the Agency provided legitimate, nondiscriminatory reason for moving Complainant from Tour 2 to Tour 3. Namely, the Agency indicated that due to its process of tour compression, the Agency eliminated Complainant's position along with others and reassigned the employees to positions in Tours 1 and 3. In addition, the Agency showed that the mail handler positions on Tour 2 involved duties that exceeded Complainant's limitations. Further, we determine that Complainant has not shown that the Agency's reason constituted discrimination. According, we determine that the AJ properly found that Complainant failed to show that he was subjected to discrimination.
Reasonable Accommodation
Complainant appears to argue that the position on Tour 3 failed to accommodate his medical limitations. 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. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Complainant also must show that he is a "qualified" individual with a disability within the meaning of 29 C.F.R. � 1630.2(m). We note that the discussion of "qualified" does not end at complainant's position. The term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. � 1630.2(m). The term "position" is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is "qualified," an agency must look beyond the position which the employee presently encumbers. Accordingly, the agency should consider reassignment. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance - Reasonable Accommodation), No. 915.002 (revised October 17, 2002); see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o). Upon review, we find that Complainant stated on his affidavit that he believed Tour 3 would cause him problems, sleeping issues and problems with his family. We note that Complainant failed to specifically state how the position on Tour 3 would not accommodate his medical limitations. Furthermore, the Agency showed that the mail handler positions that remained on Tour 2 involved heavy exhaustion. Complainant has not provided evidence or argument to show that he could have performed the mail handler position. Therefore, we find that Complainant has not established that the Tour 3 assignment constituted a violation of the Rehabilitation Act.
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 order implementing the AJ's decision without a hearing finding no discrimination.
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
January 31, 2013
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
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0120112467
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112467