Reita M,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity CommissionJul 19, 2017
0120150260 (E.E.O.C. Jul. 19, 2017)

0120150260

07-19-2017

Reita M,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Reita M,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Western Area),

Agency.

Appeal No. 0120150260

Hearing No. 551-2012-00219X

Agency No. 4E-970-0015-12

DECISION

On September 8, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 8, 2014, final order 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. For the following reasons, the Commission AFFIRMS the Agency's final order.

ISSUES PRESENTED

The issues presented before the Commission are whether: (1) an Equal Employment Opportunity Commission Administrative Judge's (AJ) decision to issue a ruling without a hearing in this matter was proper; (2) whether, by preponderant evidence, Complainant established disability (arthritis, heart conditions), age (68), and reprisal (prior EEO activity) discrimination when, since May 21, 2011 and continuing, her duty hours were slowly reduced resulting in her being offered no work at all; and (3) whether the Agency failed to accommodate Complainant's disability.

BACKGROUND

During the period at issue, Complainant worked as a Part Time Flexible Sales and Services Associate (PTF Clerk) at the Agency's Sherwood Post Office facility near Portland, Oregon. On February 14, 2014, she filed a formal complaint in which she alleged discrimination regarding the matter described as issue 2 in the "Issues Presented" part of this decision. The Agency accepted the complaint for investigation.

After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and a notice of right to request a hearing before an AJ or, alternatively, an immediate decision from the Agency based on the ROI. Complainant requested a hearing. Therefore, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ.

Over Complainant's objections, the AJ assigned to the case granted the Agency's January 3, 2013 Motion for a Decision without a Hearing and issued a summary judgment ruling on July 29, 2014, in which he found that Complainant did not establish discrimination as alleged. The Agency subsequently issued a final order adopting in full the AJ's finding. Complainant thereafter filed this appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant's argues, for the most part, that the AJ's decision was incorrect and the Agency's final action reversed. For its part, the Agency requests that the Commission affirm its adoption of the AJ's decision.

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 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (if an AJ's determination to issue a decision without a hearing, and the decision itself, will both 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

Decision without a Hearing

Initially we consider whether it was proper for the AJ to have issued a decision without a hearing on the record in this case. 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.

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 Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).

After reviewing the record in this case, we find that the record is adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. The record reveals that Complainant was provided a copy of the Agency's January 3, 2013 Motion for a Decision without a Hearing, and provided a response thereto on January 29, 2013. Upon review, we agree with the AJ regarding this aspect of Complainant's appeal and thus have no reason to disturb the AJ's decision to issue a decision without a hearing.

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. For purposes of this disparate treatment analysis, the Commission presumes, without so finding, that Complainant has established prima facie cases of disability, age and reprisal discrimination.

We now look to see whether the Agency stated legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory. The Agency stated Complainant's hours were reduced beginning in May 2011, due to the decision to implement the Delivery Unit Optimization (DUO) process.2 The Agency explained that after the DUO process was initiated, 40 hours of work per week was no longer available for Complainant because, given her medical restrictions and the restructuring of the post office in which she worked, the work Complainant could perform was reduced by 80-90%. In so doing, the Agency further explained that Complainant's status as a PTF Clerk also impacted her duty hours because the Agency was required to give full time permanent clerks a guaranteed 40-hour per week schedule. We find that the Agency has met its burden to articulate a legitimate, nondiscriminatory reason for its action.

In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. To prevail on her claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus based her disability, age, or prior EEO activity. Complainant presented no evidence, other than her own beliefs and assertions, to demonstrate pretext. However, such statements and speculation, without corresponding probative evidence, do not suffice to meet her burden. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant has failed to show that the Agency's stated reasons were pretextual.

Failure to Accommodate

Throughout the complaint process, Complainant has maintained that she was discriminated against when, since May 21, 2011 and continuing, the Agency slowly reduced her work hours ultimately resulting in her being assigned no work at all. To the extent, Complainant is alleging that she was denied a reasonable accommodation, we note that under the Commission's regulations an agency is required to make reasonable accommodation of 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. � 1630.9. For purposes of this failure to accommodate analysis, we will assume, without so finding, that Complainant is an individual with a disability.

The record reflects that Complainant's medical conditions permanently restricted her from lifting more than 20 pounds. According to a medical report in the evidentiary file dated June 7, 2011, Complainant could continuously lift between zero to ten pounds and, on an intermittent basis four hours per day, could lift between ten and twenty pounds. See ROI, 137. Therefore, on June 9, 2011, the Agency offered her a light duty assignment consistent with her lifting restrictions. See ROI, 139. Complainant accepted the offer two days later. Id.

The record further reflects at the time of the reduction in hours at the Sherwood Post Office, the place of Complainant's employ, Complainant was not qualified to perform window duties, and given her medical restrictions, there was little work she could perform. The evidence also shows that when work was available, Complainant was given that work but that there were times when no such work was available. Therefore, we find there were no effective means available to accommodate Complainant in the position she held, which raises the issue of reassignment.

Agencies are required to consider reassignment when there is no accommodation available to allow an employee to perform the essential functions of the position he or she presently holds. In general, reassignment is the reasonable accommodation of last resort and should be considered only when (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. � 1630.2(n); Enforcement Guidance on Reasonable Accommodation, "Reassignment."

The evidence shows that when the work Complainant could perform with her medical restriction was reduced to essentially none, the Agency offered Complainant work within her medical restrictions at other post offices. Complainant declined those offers because her physician advised her to only drive short distances, the implication being that the reassignments offered were too far away. The record reflects, however, the work offered was available in nearby post offices, all within a few miles of each other. Agencies are not required to provide disabled employees transportation to and from work as a reasonable accommodation unless they provide such services to individuals without disabilities. Upon review, the Commission finds that the Agency was in compliance with the Rehabilitation Act in its attempts to reassign Complainant to other post offices, but Complainant opted not to avail herself of those reassignment opportunities.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's decision to issue a decision without a hearing was proper in this case. We further find that Complainant did not establish disability, age, and reprisal discrimination when her duty hours were slowly reduced resulting in her being offered no work at all. Finally, we find that the Agency did not fail to accommodate Complainant's disability. Accordingly, the Agency's final order hereby is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

__7/19/17________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

2 The DUO process involves relocating letter carriers from local Post Offices, stations and branches and consolidating them into centralized delivery offices that will continue to be served by the same processing and distribution center.

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0120150260