0120101064
08-18-2011
Shalinder K. Gupta, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Shalinder K. Gupta,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120101064
Hearing No. 460-2009-00134X
Agency No. 4G-770-0066-09
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s December 3, 2009 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. For the following reasons, the Commission
AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency’s District Office in Houston, Texas.
On March 9, 2009, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of race (Asian)
and disability, when on or around November 7, 2008, his detail was
terminated, he was not provided a job offer within his restrictions,
and he was forced to retire.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) 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 motion for a decision
without a hearing and issued a decision on December 3, 2009.
In her decision, the AJ initially found that Complainant had not
established a prima facie case of discrimination on the alleged bases.
Nonetheless, the AJ assumed arguendo that Complainant had established
a prima facie case of discrimination and found that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions. The AJ
found that in 2005, Complainant was injured when the station where he
worked was robbed. Complainant returned to work six months later and was
provided a limited-duty position. Complainant’s restrictions required
that he work in a secure location, not be completely alone, not work
in customer service, not be around crowds or loud noises, and that he
be provided work in an office setting with security-controlled access.
Some time after his return to duty, Complainant was assigned a detail
to time-keeping at the Houston District, Health and Resource Office.
This position was not a vacant, funded position and was not a permanent
assignment.
In October 2008, the Houston District Manager (DM) announced that all
details that were not to recognized funded positions would be eliminated
and employees would return to their regular positions. Complainant’s
regular position was city carrier, but he could not perform the duties
of this position because of his limitations. Complainant’s supervisor
(S1) determined, that there were no positions in the District Office
where Complainant was located. S1 and the area manager searched for
available positions and offered Complainant a modified city carrier
position at a different location than where the robbery had taken place.
Complainant and his physician rejected the position because they
believed the position violated his restrictions. The physician also
requested that Complainant be retained in his current detail, but did
not provide any restrictions which would be violated by the job offer.
The Office of Workers’ Compensation (OWCP) found that the job offer was
reasonable and within Complainant's medical restrictions. Nonetheless,
Complainant refused the job offer.
The Agency offered all eligible employees a voluntary early retirement
opportunity with a deadline of November 21, 2008 for acceptance.
Complainant requested early retirement on November 19, 2008. After the
revocation date had passed, Complainant requested that he be allowed
to revoke his retirement. Once Complainant’s voluntary retirement
was approved by the Office of Personnel Management, the Agency had no
control over its terms.
The AJ concluded that Complainant had presented no evidence that the
Agency’s reasons for its actions were pretextual. As a result, the AJ
found that Complainant had not been discriminated against as alleged.
In addition, as to Complainant’s reasonable accommodation denial claim,
the AJ found that the Agency attempted to find Complainant a position
and when that failed, the Agency invented a position for him. The OWCP
agreed that position was within Complainant’s restrictions; however,
Complainant refused to accept the position. While Complainant suggested
that there were jobs he could do; the AJ found that Complainant failed to
identify a vacant, funded position into which he could be transferred.
As a result, the AJ determined that the Agency had not violated the
Rehabilitation Act. The Agency subsequently issued a final order adopting
the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency provided untrue
information in the record. Further, Complainant alleges that the
identified comparators were all retained in their high-level, non-funded
detail positions while he was not. Accordingly, Complainant requests
that the Commission reverse the final order.
ANALYSIS AND FINDINGS
Decision without a Hearing
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which required
a hearing and therefore the AJ's issuance of a decision without a hearing
was appropriate. The Commission concludes that, even assuming all facts
in favor of Complainant, a reasonable fact finder could not find in his
favor, as explained below. Therefore, no genuine issues of material
fact exist. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.
Denial of Reasonable Accommodation
To the extent that Complainant is alleging that he was denied reasonable
accommodation, the Commission notes that the Rehabilitation Act of
1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that Complainant was
denied a reasonable accommodation, Complainant must show that: (1)
he is an individual with a disability, as defined by 29 C.F.R. §
1630.2(g); (2) he is a qualified individual with a disability pursuant
to 29 C.F. R. § 1630.2(m); and (3) the Agency failed to provide a
reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915.002 (Oct. 17, 2002). 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.
See 29 C.F.R. §§ 1630.2(c) and (p). For purposes of analysis, the
Commission shall assume, without so finding, that Complainant is a
qualified individual with a disability.
S1 affirmed that the only position available within Complainant’s
restrictions was a position that had been abolished at the District
Office. ROI, at 80. To accommodate Complainant, the District
Office reactivated the position and Complainant was detailed into the
higher-level, non-funded position. Id. When the detail position was
abolished, another accommodation was offered within Complainant’s
restrictions. Id. There were no other positions or duties available
within the District Office; therefore, Complainant was offered a
modified City Carrier position at the Long Point Station. Id. at 81.
S1 affirmed that this position was within Complainant’s restrictions.
Id. at 82. While one of Complainant’s restrictions was that he must
work at a secure location, S1 maintained that one Agency facility was no
more or no less secure than any other facility, as security precautions
are taken at all Agency facilities. Id. Complainant refused to accept
the new assignment and remained home because the Agency did not have any
other duties available within his restrictions. Id. at 82. As a result,
Complainant was offered early voluntary retirement and he accepted it
on the last possible day. Id. at 84.
The Commission notes that Complainant is entitled to an effective
accommodation, but not necessarily the accommodation of his choice.
Complainant has not offered any evidence that the various accommodations
granted to him were ineffective. Although Complainant contends
that positions were available to which he could have been reassigned,
Complainant has not identified an actual vacant, funded position within
his restrictions that he could have performed at the relevant time, and
it is his burden to do so. The Commission notes that an employer is not
required to create a job for a disabled employee, nor is it required to
transform its temporary light or limited-duty assignments into permanent
jobs to accommodate an employee's disability. See Mengine v. Runyon, 114
F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. U.S. Postal Serv., EEOC
Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement Guidance: Workers
Compensation and the ADA, EEOC Notice No. 915.002 at 21 (Sept. 3, 1996).
Accordingly, the Commission finds that Complainant has not demonstrated
that he was denied reasonable accommodation.
Finally, to the extent that Complainant is alleging disparate treatment
(apart from accommodation), the Commission finds that as discussed above,
the Agency has articulated legitimate, nondiscriminatory reasons for
its actions. Construing the evidence in the light most favorable to
Complainant, the record is devoid of any evidence that discrimination was
a factor in the Agency's actions. At all times, the ultimate burden of
persuasion remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency's reason were not the real reasons,
and that the Agency acted on the basis of discriminatory animus.
Complainant has failed to carry this burden. Accordingly, the Commission
finds that Complainant has failed to show that he was discriminated
against as alleged. Further, to the extent that Complainant may be
alleging that he was constructively discharged, the Commission finds
that the Agency’s conduct did not amount to discrimination; therefore,
Complainant cannot establish that his voluntary retirement amounted to
a constructive discharge based on discriminatory animus.
CONCLUSION
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 Administrative Judge’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 (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
August 18, 2011
Date
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0120101064
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101064