0120121737
08-15-2012
Victor Din, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Victor Din,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120121737
Hearing No. 480-2010-00467X
Agency No. 1F-933-0020-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 9, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Handler, PS-04, at the Agency's Bakersfield Processing and Distribution Center in Bakersfield, California.
On July 28, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (Asian), national origin (Burmese/Asian), sex (male), religion (Seventh Day Adventist), and color (yellow) when:
on April 20, 2009, he was sent home after six hours of work.1
The record reflects that Complainant is a limited duty employee with medical restrictions as a result of an on-the-job injury that has been accepted by the Department of Labor's Office of Workers' Compensation Program. The record further reflects that from at least 2008 to the present, Complainant has not held a bid position. Complainant's assignments are based on limited duty job offers that the Agency makes to him, consistent with his restrictions and available, necessary work. The record reflects that if work is occupied by another employee who holds a bid, it will not be available to limited duty employees like Complainant.
Prior to April 2009, Complainant cancelled flats for approximately two hours per day and prepped flats for approximately six hours per day. As part of his duties, Complainant cancelled stamped flats in close proximity to the flat sorting machine. The record reflects that the rolling belt would move the stamped flats under an indicia canceller, which would mechanically cancel the stamps. The belt would then dump the newly cancelled stamped flats into a hamper. Complainant would then push the hamper to the flat sorting machine so it could be processed. Sometime in 2009, the Agency made changes to the flat sorter machine which allowed the machine itself to cancel the stamped flats which removed the need for employees like Complainant to mechanically cancel the stamped flats with the indicia machine and rolling belt. The change reduced the number of employee-hours in the flats section.
During the relevant period, Complainant also worked in the Low Cost Tray Sorter area. The record reflects that sometime in 2009, several employees bid on jobs that required them to work in the Low Cost Tray Sorter area. Because of the influx of bidders into the Low Cost Tray Sorter area in 2009, there was less work available for Complainant and others who did not hold bids.
Beginning in 2008, Complainant's limited duty job offer was evaluated under the NRP. At that time, automation was reducing the amount of available work for all employees, including those who were on limited duty, such as Complainant. The record further reflects that given the reduced volume of work, the purpose of the NPR was to identify operationally necessary work for employees with limited duty job offers. On April 20, 2009, Complainant's work hours were reduced from eight hours per day to six hours per day, and he was given a new job offer. Prior to Complainant's hours being reduced, the Agency searched for additional operationally necessary work within Complainant's medical restrictions, but found none beyond the six hours per day that was assigned to Complainant. Complainant's new job offer eliminated the duties cancelled flats, because the mechanical cancelling of flats was no longer needed. The new job offer also eliminated Complainant's duties in the Low Cost Tray Sorter area because other Mail Handlers bid into the area and the work was no longer available. However, Complainant continued to work six hours per day in prepping flats.
Following the investigation into his formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 3, 2012, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
In her decision, the AJ found no discrimination. The AJ found that Complainant did not establish a prima facie case of race, national origin, sex, religion, and color discrimination. The AJ further found that assuming arguendo Complainant established a prima facie case of race, national origin, sex, religion, and color discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The AJ noted that a review of the record reflects that due to decreased mail volume, Complainant and twenty-two other limited duty employees were evaluated under NRP. Many employees, including Complainant, were offered new limited duty job positions consisting of fewer than eight hours of operationally necessary and available work consistent with their medical restrictions. The AJ further noted that on April 20, 2009, and each day thereafter until March 22, 2010, Complainant was sent home after six hours of work due to lack of available, operationally necessary work within his restrictions. Moreover, the AJ noted that on March 22, 2010, when Complainant's restrictions became less onerous, the Agency again provided him with eight hours of work.
The Supervisor Distribution Operations (SDO) stated that on April 20, 2009, Complainant was sent home after six hours of work because the NRP had been implemented district wide and "is based on today's world economic struggles that have affected the Postal Service on a significant level. These economic struggles mandates the Postal Service to ensure all job tasks which its employees are performing are operationally necessary and not 'make work.' This action is necessary in order to ensure the very survival of the Postal Service in today's economic environment where the mail volume has dramatically decreased and the sales in Postal products has dramatically declined."
SDO further stated that due to Complainant's medical restrictions, the only work available for him at that time was "in the Flat Prep Operation. The employee's restrictions at this time have changed to full duty without any limitations and the employee has been restored to eight hours a day." Moreover, SDO stated that he did not discriminate against Complainant based on his race, national origin, sex, religion and color.
The Resource Manager (RM) stated that the NRP was a process to review all rehabilitation and limited duty assignments "to ensure all assignments contain only operationally necessary tasks. [Complainant] is a limited duty employee and was evaluated in the NRP process." RM further stated that during the relevant time, she assisted the supervisors and managers "by maintaining the files for the limited duty employees and the necessary worksheets showing the available operationally necessary work available in the plant." RM stated that none of the limited duty employees had the exact same restrictions "so all were evaluated based on their medical restrictions." Furthermore, RM stated that Complainant's race, national origin, sex, religion and color were not factors in management's decision to send him home on April 20, 2009.
ANALYSIS AND FINDINGS
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.
Complainant did not make any new contentions on appeal. We find that the AJ properly issued a decision without a hearing, finding no discrimination. We determine that Complainant has failed to identify any genuine issues of material fact that require resolution through a hearing in this matter. The evidence of record fully supports the AJ's determination that Complainant did not prove, by a preponderance of the evidence, that discrimination occurred.
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 action 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 unlawful 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
August 15, 2012
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Victor Din
3004 Victoria Way
Bakersfield, CA 93309
Pedro Naveiras, Jr.
P.O.B. 82461
Bakersfield, CA 93380
U.S. Postal Service (Pacific)
NEEOISO - Appeals
U.S. Postal Service
PO Box 21979
Tampa, FL 33622-1979
__________________
Date
______________________________
Equal Opportunity Assistant
1 The record reflects that on August 20, 2009, the Agency determined that the instant formal complaint was being held in abeyance pending the outcome of an appeal of a certification decision in a class complaint. On appeal, the Commission affirmed the Agency's decision to hold Complainant's claim on the basis of disability, in abeyance. The Commission, however, reversed the Agency's decision to hold in abeyance Complainant's claims of discrimination on the remaining bases. The Commission remanded the matter to the Agency for further processing. Din v. United States Postal Service, EEOC Appeal No. 0120093777 (February 4, 2010). Following the Commission's decision, the Agency processed the remanded claim in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal. The record further reflects that the instant formal complaint is now docketed as Agency No. 1F-933-0020-09, not its original docket number of Agency No. 1F-933-0006-09.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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