0120141342
10-08-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120141342
Hearing No. 550-2012-00141X
Agency No. 4F-956-0122-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 29, 2014 final order 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., 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.
BACKGROUND
During the period at issue, Complainant worked as a Full Time City Carrier at the Agency's North Highlands/Rio Linda facility in Rio Linda, California.
On July 20, 2011, Complainant sought EEO counseling. Informal efforts to resolve his concerns were unsuccessful.
On October 14, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Asian Pacific Islander), color (light), disability (adjustment disorder/anxiety/depression), age (DOB 1964), and in reprisal for prior protected EEO activity when:
1. in February 2010, Complainant was subjected to an attendance investigation, and he was charged with being Absent Without Leave (AWOL);
2. in June 2010, Complainant was issued a Letter of Warning which was subsequently rescinded;
3. on February 3, 2011, Complainant's request to a transfer to the Reno, Nevada post office was denied; and
4. on June 26, 2011, Complainant's request for a reasonable accommodation was denied.
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge ("AJ"). On December 13, 2013, the Agency moved that a decision be issued without a hearing pursuant to 29 C.F.R. � 1614.109(g)(1). Complainant opposed the motion by submission dated December 27, 2013. The AJ reviewed the Agency's motion, Complainant's opposition, and the entire investigative file. The AJ determined that the parties had been given ample opportunity to conduct discovery, that the record was adequately developed, comprehensive, complete, impartial and constituted an appropriate basis upon which to render a decision without a hearing.
The AJ determined that a review of the evidence of record reveals the following undisputed facts.
Complainant had several unscheduled absences from work, and he did not provide acceptable reasons for the protracted absences. Complainant alleged that he had "call[ed] into the system" in regard to his February 2010 absences. The AJ found that beyond the corrective measures taken to address Complainant's failure to comply with the Agency's policies and procedures applicable to requests for medically related absences, there was no evidence that Complainant was otherwise aggrieved or suffered any adverse personnel consequence in February 2010.
On June 7, 2010, Complainant was issued a 14-day suspension for accumulating 10 days of unscheduled absences. Due to a procedural oversight related to the issuance of progressive disciplinary measures under the relevant Collective Bargaining Agreement and the Agency's Labor and Employment Policies, this 14-day suspension was rescinded by Complainant's Supervisor, Ms. O. Still, the AJ determined that there was no evidence to contradict the initial issuance based upon Complainant's "irregular" attendance.
Some time in mid-2010, Complainant initiated a request to transfer to the Agency's Reno Nevada facility. Such requests are processed by an Agency software program known as "eReassign," and must be supported with a supervisor evaluation. The Agency Postmaster (Postmaster B), explained in a sworn statement that he received a call from the Reno Management requesting the requisite supervisor evaluation of Complainant. Supervisor B informed Reno Management that Complainant had not worked most of 2009, 2010 and 2011, up to the date of the conversation. Postmaster B indicated that he was not in a position to
evaluate Complainant's performance. Reno Management stated that Complainant did not meet
the required criteria to support a transfer, specifically because of Complainant's performance and attendance records, as well as disciplinary measures that were pending against him at the time. Complainant's transfer request was closed on June 14, 2011.
In mid to late 2010, Complainant requested a reasonable accommodation for his disability1. The Reasonable Accommodation Committee ("Committee") scheduled a meeting on February 3, 2011, to consider Complainant's request. The Agency provided Complainant with time needed to obtain the necessary medical documentation demonstrating that he required such an accommodation to perform his job. Complainant submitted documentation on July 7, 2011. On July 26, 2011, after reviewing and considering the documentation provided by Complainant, the Committee notified Complainant that he did not demonstrate that he suffered from an impairment which limited him in any way from performing the "essential functions of [his] City Carrier position." The Committee thus found that no reasonable accommodation was necessary.
However, in consideration of Complainant's reasonable accommodation request, the Committee nevertheless conducted a follow-up meeting with Complainant on September 8, 2011. The Agency again considered restrictions identified by Complainant, which included finding a position that was free from "environmental hostility or stress," criteria proposed by Complainant's medical provider. The Committee researched any available vacant, funded positions within the Agency and outside of Complainant's assigned position. An interactive process ensued and the Agency contacted other departments of the Agency to explore alternatives. The Agency concluded that there were no vacant funded full time positions that would meet Complainant's criteria. The Agency did identify a Part Time Flexible position located in Cutler, California, which may have met Complainant's criteria. Complainant ultimately decided that the part time position was insufficient to meet his needs, specifically because it was not full time position.
Based on these facts, on January 22, 2014, the AJ issued a decision by summary judgment in favor of the Agency. In his decision, the AJ found no discrimination. The AJ found that assuming for the sake of argument only, Complainant established a prima facie case of discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The AJ determined that three of Complainant's four claims (the matters identified in February 2010, June 2010, and February 2011) were untimely raised with an EEO Counselor, because Complainant did not seek EEO counseling within the 45 day period following the alleged discriminatory event at issue. The AJ determined that each incident of discrimination constituted a separate actionable unlawful employment practice and that Complainant could only pursue a claim related to such acts if the act occurred within the 45 day period before July 20, 2011, the day that Complainant sought EEO counseling. Nonetheless, the AJ analyzed each incident and determined that even if the claims were timely, Complainant had not provided sufficient evidence for a reasonable fact finder to find that the Agency's asserted non-discriminatory and non-retaliatory reasons were not the actual reasons but merely pretextual for the Agency's actual, intentional discriminatory and retaliatory actions against Complainant.
The AJ determined that Complainant's allegations reflected the dynamics of interpersonal relationships between employees and managers and could not alter the conditions of employment so as to implicate the Title VII , the Rehabilitation Act, the ADEA or the Commission's reprisal-related regulations. The AJ found that the incidents reflected routine workplace administrative matters and exchanges that could not rise beyond petty slights and trivial annoyances. Additionally, the AJ determined that Complainant failed to show that any action that affected him was not justified for legitimate reasons.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
On appeal, Complainant makes several arguments as to why the AJ erred in finding no discrimination. In response, the Agency in essence argues that the AJ properly found no discrimination, for the reasons set forth in the AJ's decision.
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.
Given the present record, we determine that the AJ exercised proper discretion in finding that a decision without a hearing was appropriate.
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 case 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).
Even if we assume arguendo that Complainant established a prima facie case of discrimination on all raised bases, the Agency has nevertheless articulated legitimate, nondiscriminatory reasons for its actions. For example, in regard to Complainant's Reasonable Accommodation request, the record supports the AJ's findings that that the District Reasonable Accommodation Committee (DRAC) determined that Complainant failed to provide any documentation that could demonstrate a substantial impairment to any major life activity, or a need for an accommodation in order for Complainant to complete the essential functions of his position.
On appeal, Complainant, has not provided any persuasive arguments regarding the propriety of the AJ's decision to issue a decision by summary judgment. He has failed to identify material facts in dispute which would require resolution through a hearing. We also find that the AJ's findings of fact are supported by undisputed evidence in the record, and that the AJ's conclusions of law properly applied those facts to the appropriate regulations, policies, and laws. While management officials admitted some knowledge of Complainant's prior EEO activity, they both proffered legitimate, non-discriminatory reasons for the decision made. In turn, Complainant did not prove, by a preponderance of the evidence, that the proffered reason was pretext and the decision made was the result of retaliatory animus.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final decision fully implanting the AJ's decision.
Accordingly, for the reasons provided above, the Agency's final action implementing the AJ'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
October 8, 2014
__________________
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:
__________________
Date
______________________________
Compliance and Control Division
1 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability.
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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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