0120141641
10-07-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120141641
Hearing No. 480-2012-00340X
Agency No. 4F-913-0045-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 1, 2014 final action concerning her 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.
BACKGROUND
During the period at issue, Complainant worked as a Letter Carrier at the Agency's Thousand Oaks, California Post Office.
On October 5, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of sex (female), disability (shoulder injuries and fibromyalgia), and in reprisal for prior EEO activity when:
1. on April 26, 2011, the Agency refused to restore her to her Letter Carrier position after she had partially recovered from an injury; and
2. in February 2012, the Agency denied her request for a reasonable accommodation.1
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 1, 2014, the AJ issued a decision by summary judgment in favor of the Agency.
The AJ found the following undisputed facts:
Claim 1 - Restoration
Complainant sustained a shoulder injury in 2001. The effects of the injury required Complainant to undergo two surgeries, the first one in 2001 and the second one in May 2003. The AJ further noted that following the second surgery, Complainant did not return to work for a period of several years. Subsequent to her shoulder surgeries, Complainant was diagnosed with several other injuries, including neck sprain, injuries to arms and wrists, myalgia, myositis, and major depressive disorder.
Further, the AJ noted that on February 10, 2011, Complainant sent a letter to Injury Compensation requesting restoration to her Letter Carrier position or to any job within her physical restrictions. The February 10, 2011 letter indicated that physical restrictions were described in reports from Complainant's physicians dated November 3, 2010; December 15, 2010; January 25, 2011; and January 26, 2011. Those reports, among other things, indicated that Complainant should not lift more than 20 pounds.
Complainant's request was forwarded to the Postmaster. The Postmaster, in turn, forwarded the request to the Resource Manager to perform a search for work assignment within Complainant's medical restrictions. The AJ noted that the Resource Manager determined that because one of the essential functions of a Letter Carrier position was to lift a satchel weighing up to 35 pounds, Complainant could not be returned to her former position. The Resource Manager then commenced a search for other positions or assignments within Complainant's restrictions at the Thousand Oaks Post Office and other postal facilities within 50 miles. The Resource Manager was unable to locate any assignments within the search area that Complainant would be able to perform within her restrictions. On April 26, 2011, the Postmaster sent Complainant a letter placing her on notice that the Agency had conducted a search for work assignments at all facilities within 50 miles but was unable to identify any assignment within her restrictions.
On May 3, 2011, Complainant filed a grievance alleging that the Agency did not make adequate effort to identify an appropriate work assignment for her. One of the grievance issues was whether the Agency should have used the restrictions that were identified in a 2008 medical report rather than the restrictions in Complainant's 2010 and 2011 medical reports in the search for work assignments. The AJ noted among other restrictions, the 2008 medical report restricted Complainant from doing any lifting or any reaching above the shoulder. In light of Complainant's grievance, the Resource Manager conducted another search for work assignments using the 2008 medical restrictions at the Thousand Oaks Post Office and other postal facilities within 50 miles. This search also did not identify any work assignment within Complainant's 2008 medical restrictions and Complainant was notified of such.
Complainant submitted a new medical report, dated June 28, 2011, to the Agency. The June 28, 2011 medical report indicated that Complainant could lift up to 30 pounds intermittently for 8 hours. In response to the June 28, 2011 medical report, the Department of Labor's Office of Workers' Compensations Program (OWCP) sent the Agency a letter dated July 26, 2011, stating that the June 28, 2011 report was inconsistent with four prior reports issued by the same physician in February, March, April and May of 2011. The AJ noted that the June 28, 2011 medical report was also inconsistent with the 2008 medical report which an OWCP representative had determined was the prevailing medical opinion.
Based on these inconsistencies, the OWCP advised the Agency that it should not rely on the June 28, 2011 medical report as the basis for determining the suitability of any work assignment for Complainant. The AJ noted that the OWCP letter also stated that it would develop substantive evidence to resolve the "ambiguity" in Complainant's medical documentation.
In light of the OWCP letter, Complainant and the Agency resolved Complainant's grievance by agreeing that there was no available work assignments within Complainant's medical restrictions pending OWCP's resolution of the ambiguity of Complainant's medical status.
Claim 2 - Reasonable Accommodation
In May 2011, Complainant submitted a request for reasonable accommodation to the Agency's
District Reasonable Accommodation Committee (DRAC). The Occupational Nurse, who was also a DRAC member, sent Complainant a form to complete to identify the nature of her impairment and the essential functions of her position for which she needed accommodation. Complainant returned the form on May 23, 2011, and in her response indicated that she "need[ed] help" lifting objects weighing more than 30 pounds. At the DRAC's request, Complainant also submitted updated medical reports - the June 28, 2011 report described above (could lift up to 30 pounds intermittently) and a report from the same physician dated May 17, 2011, indicated that Complainant could lift no more than 20 pounds.
The DRAC responded to Complainant, noting the inconsistency in the two reports, and asked Complainant to submit additional medical information addressing the conflict. On November 19, 2011, Complainant responded that she would not provide additional medical information and asked the DRAC to make a decision based on the reports already provided.
On February 29, 2012, the DRAC sent Complainant a letter notifying her that it had determined, based on her medical reports, that she was unable to perform the essential functions of a letter carrier with or without accommodation. The DRAC also found that it was unable to identify any vacant position for which Complainant was qualified and could be reassigned.
AJ's Conclusions
Based on the evidence described above, the AJ found that Complainant did not dispute that there was no accommodation that would have permitted her to perform the lifting function of the letter carrier position. Noting that the Agency conducted two extensive searches, the AJ also determined that Complainant failed to identify any vacant position to which she could have been reassigned.
With regard to Complainant's disparate treatment claims, the AJ concluded that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of sex, disability and retaliation. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination
In its final order, the Agency adopted the AJ's decision. The instant appeal followed.
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.
After careful consideration of the record, as well as the arguments on appeal, we conclude that the AJ's decision to grant summary judgment was no in error. Complainant has failed to adequately identify material facts in dispute which would require a hearing to resolve. Moreover, the AJ's decision, including the ultimate finding that no discrimination had been proven, is supported by the substantial evidence in the record.
Restoration
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the responsible managers explained that Complainant could not be restored to her former letter carrier position due to her lifting restrictions. Moreover, the Agency conducted two extensive searches for vacant positions where she could be reassigned, but could not find anything Complainant was qualified for and was within her medical restrictions.
In an attempt to prove pretext, Complainant identified two other employees who she claim were treated more favorably when their request for restoration were granted. However, the weight of the evidence supports the AJ's finding that Complainant was not similarly situated to these employees because they were each able to lift greater weight than Complainant and thus were qualified to be placed in a greater range of positions. In her opposition to summary judgment, Complainant identified more employees who were offered modified duties. However, there is no evidence that these employee had medical restrictions similar to Complainant, or that the positions these employees were placed in were available at the time the two searches were conducted for a position for Complainant. Moreover, the evidence shows that Complainant and the Agency resolved Complainant's grievance by agreeing that there was no available work assignments within Complainant's medical restrictions pending OWCP's resolution of the ambiguity of Complainant's medical status. Therefore, we find that the evidence does not support a conclusion that Complainant proved she was subjected to disparate treatment because of her sex, disability or prior EEO activity.
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 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 (Oct. 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 case an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). We shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability.
Complainant has not shown that the Agency wrongfully denied her reasonable accommodation in violation of the Rehabilitation Act. Complainant does not dispute that her lifting restrictions precluded her from performing in her former letter carrier position. Nor has she identified any vacant funded position to which she could have been reassigned. The record shows that the Agency conducted two extensive searches for positions for Complainant but could not find one. Moreover, upon reviewing Complainant's medical reports, the DRAC immediately identified an inconsistency in the May and June 2011 reports from the same physician, and asked for clarifying medical documentation, which Complainant declined to provide.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, we AFFIRM the Agency's final action because the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the 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 (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
October 7, 2014
__________________
Date
1 The record reflects that claim 2 was later amended to the instant formal complaint.
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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