0120090535
02-25-2011
William C. Hogan, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
William C. Hogan,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120090535
Hearing No. 410-2008-000159X-RPD
Agency No. 4H-300-0124-07
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as a City Carrier at the Agency's Cumberland Carrier Facility in
Atlanta, Georgia. Report of Investigation (ROI), at 2. Believing that
he was a victim of discrimination, Complainant sought counseling and
subsequently filed a formal complaint.
Complainant alleges that he was subjected to discrimination on the basis
of disability (obsessive compulsive disorder with panic attacks and
depression) when, on January 5, 2007, he was not provided a reasonable
accommodation.1
At the conclusion of the investigation, Complainant received a copy
of the investigative report. The Agency informed Complainant of
his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the Agency.
Complainant requested a hearing before an AJ.
On September 3, 2008, an AJ issued a decision without a hearing finding
no discrimination. The AJ found that Complainant had not been denied a
reasonable accommodation. The Agency subsequently issued a final order
adopting the AJ's decision. Thereafter, Complainant filed the instant
appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant submitted exhibits, which supported his request
for reasonable accommodation. Complainant's Appeal, at 1.
ANALYSIS AND FINDINGS
We must first 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. Upon review,
we find that the AJ properly issued a decision without a hearing because
there is no genuine issue of material fact.
Denial of Reasonable Accommodation
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 Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC No. 915.002 (October 17, 2002) ("Enforcement Guidance").
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
(o) and (p). Notwithstanding the AJ's finding that complainant is not
disabled within the meaning of the Rehabilitation Act, we will assume
without deciding (for the purposes of this decision) that complainant
is an individual with a disability and a qualified individual with a
disability.
Complainant asserts that the Agency violated prior settlement agreements
and failed to reasonably accommodate the off-duty Complainant when
a supervisor directed Complainant to leave the postal premises on
January 5, 2007. The record reflects that Complainant suffers from
Obsessive Compulsive Disorder (OCD) and Complainant is prone to attacks.
When Complainant suffers these attacks, Complainant states that he cannot
interact with others appropriately, and has difficulty communicating with
others. Complainant states that there were 1999, 2000, 2003, and 2005
Settlement Agreements that are suppose to assist the Agency in dealing
with Complainant's condition. There is no indication that Complainant
attempted to resolve the instant case by attempting to enforce the
provisions of the settlement agreements pursuant to 29 C.F.R. � 1614.504.
In Hogan v. United States Postal Service, EEOC Appeal No. 0120073266
(September 25, 2007), we note that Complainant was advised to contact the
EEO Director in writing pursuant to 29 C.F.R. � 1614.504 if he wished to
pursue a claim of breach. The AJ properly noted that such claims could
not be raised before the AJ. This decision therefore will only consider
the claim of discrimination, not any breach of settlement claims.
In early January 2007, Complainant was on sick leave and Workers'
Compensation, having been scheduled to be on leave from January 1
through 9, 2007. On January 5, 2007, Complainant came to his work
premises, however, to check on how he would be paid for January 2,
2007, an unscheduled and unusual holiday granted because of the death
of President Gerald Ford. Complainant met with the Acting Supervisor
and inquired how the Ford off day would be coded. The Acting Supervisor
attempted to research the question on the computer, but was unsuccessful.
The Acting Supervisor told Complainant that she could not discern how the
leave for the Ford off day would be handled at that time, but would find
out later. The Acting Supervisor then asked the off-duty Complainant to
leave the premises. Complainant did not leave. Complainant became upset
because the Acting Supervisor did not have the answer. Complainant began
having symptoms of a panic attack. Despite repeated request from the
Acting Supervisor that Complainant leave, Complainant failed to do so.
The Acting Supervisor stated that Complainant was causing a commotion.
The Acting Supervisor threatened to call the police. Eventually,
Complainant left the premises. Complainant was paid for the President
Ford's off day. AJ's Decision, at 6-7.
Assuming, arguendo, that Complainant established that he is a qualified
individual with a disability, we find that Complainant failed to prove
that the Agency denied him a reasonable accommodation on January 5, 2007.
Complainant was at the workplace when he was not scheduled or supposed to
be there. Regardless, the Acting Supervisor worked with him to answer
his leave question. The Acting Supervisor was initially unsuccessful,
but did not deny Complainant's request. The Acting Supervisor noted
(correctly) that an immediate answer to an unusual question was not
immediately apparent or forthcoming. Complainant failed to accept
that response and had a panic attack, thereby disrupting the workplace.
Complainant would not leave. The Agency is obligated to provide a safe
working environment for all employees. The Acting Supervisor did not
act unreasonably in attempting to remove Complainant. Complainant
eventually left the premises. Complainant has not shown how he was
denied a reasonable accommodation. Therefore, we find that Complainant
has failed to establish his claim that Agency failed to provide him a
reasonable accommodation
Disparate Treatment
In analyzing a disparate treatment claim under the Rehabilitation
Act, where the agency denies that its decisions were motivated
by Complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman
v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) he is an
"individual with a disability"; (2) he is "qualified" for the position
held or desired; (3) he was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). The burden of production then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. In order to satisfy his burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the
agency's proffered reason is a pretext for disability discrimination. Id.
If the agency is successful, the burden reverts back to complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were a pretext for discrimination. At all times, complainant
retains the burden of persuasion, and it is his 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 Service Board of Governors v. Aikens, 460 U.S. 711, 715-716
(1983).
To the extent that Complainant is alleging disparate treatment (apart
from accommodation), we find that as discussed above, the Agency has
articulated legitimate, nondiscriminatory reasons for its actions. Because
the Agency has proffered legitimate, nondiscriminatory reasons for
the alleged discriminatory event, Complainant now bears the burden of
establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). We find that
aside from Complainant's bare assertions, the record is devoid of any
persuasive 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, we find that Complainant has failed to show
that he was discriminated against as alleged.
CONCLUSION
The Agency's decision finding no discrimination is AFFIRMED.
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
February 25, 2011
__________________
Date
1 Complainant also alleged a violation of the Age Discrimination in
Employment Act, as amended, 29 U.S.C. Section 621 et seq. (ADEA). The AJ
found that there was no evidence of a violation of the ADEA in any of
Complainant's submissions to the investigator or in the submissions to
the Court. The AJ said that Complainant made no reference to the ADEA in
his Response. The AJ found that Complainant appeared to have abandoned
this basis and that there was no factual basis presented for a finding
of age discrimination. We note that Complainant did not address this
basis on appeal. Accordingly, the Commission will not address the basis
of age herein. Equal Employment Management Directive for 29 C.F.R Part
1614 (EEO MD-110), 9-10 (November 9, 1999) ("Although the Commission
has the right to review all of the issues in a complaint on appeal, it
also has the discretion not to do so and may focus only on the issues
specifically raised on appeal."). If we did address age discrimination,
we would find that there is no preponderance of evidence showing age
discrimination in the instant matter.
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0120090535
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013