0120110463
02-01-2012
Mark M. Hensley, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Mark M. Hensley,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120110463
Hearing No. 470-2007-00203X
Agency No. 1J-461-0012-07
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s September 17, 2010 final order concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
The Commission’s review is de novo. 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Electronic Technician at the Processing and Distribution Center
in Indianapolis, Indiana. Prior to March 2007, Complainant held a bid
position on Tour 1, working 10:30 PM to 7:00 AM. Working at night
exacerbated Complainant’s medical condition and Complainant’s
physician recommended that he transfer to the day shift. On September
25, 2006, Complainant requested a transfer to Tour 2 as a reasonable
accommodation. In his request, Complainant stated that his co-worker and
significant other (CW1) had a reasonable accommodation to work the same
hours and have the same off-days as him; therefore, he requested that CW1
be transferred with him to Tour 2 with the same hours, off-days, and in
the same facility. Complainant’s Tour 1 supervisor (S1) instructed
Complainant to submit his tour change request separate from CW1’s;
however, Complainant refused. S1 offered Complainant a temporary schedule
change to Tour 2 until he submitted a bid for a permanent schedule
change, but Complainant refused because he believed that the Tour 1
Maintenance Operations Manager and the District Reasonable Accommodation
Committee (DRAC) were working to provide him with a permanent reasonable
accommodation.
On October 3, 2006, Complainant submitted a bid for a permanent Tour 2
position. Complainant indicated that his bid was conditioned on CW1’s
transfer to Tour 2. Complainant was informed that the Agency did not
allow conditional bid assignments and if he was interested in bidding,
he had to submit one for himself without it being conditioned upon CW1’s
transfer. Complainant refused to submit a new bid without the condition.
On October 11, 2006, Complainant’s physician stated that due to
Complainant’s medical condition, he must be on a regular work schedule
during the daytime and he must get 8 to 12 hours of rest on a regular
basis. On November 14, 2006 and January 11, 2007, Complainant and CW1
wrote letters to Agency management requesting “reasonable accommodation
for 2 positions on Tour 2 with the same hours and off days.”
Complainant finally agreed to submit a temporary schedule change just for
himself, and starting January 20, 2007, Complainant was granted temporary
schedule changes to Tour 2, until he was the successful bidder on a
permanent Tour 2 position on March 31, 2007. Complainant worked on Tour
2 until he voluntarily bid on a Tour 3 position effective August 2, 2008.
On March 23, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of disability and in
reprisal for prior protected EEO activity when, since September 25,
2006, Complainant’s requests for reasonable accommodation had not
been granted.1
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 and issued a
decision without a hearing on September 7, 2010.
In the decision, the AJ initially assumed arguendo that Complainant is
an individual with a disability as defined under the Rehabilitation Act
and found that Complainant is a qualified individual with a disability.
However, the AJ determined that the Agency had not failed to offer
Complainant reasonable accommodation. Specifically, the AJ found that
throughout the period from his September 25, 2006 accommodation request
through March 2007, the Agency made offers to place Complainant on Tour
2, but Complainant rejected the offers because he wanted his significant
other, with whom he lived and commuted, to transfer at the same time.
The only period in which Complainant did not work the shift he requested
was September 25, 2006 through January 20, 2007 and only because
Complainant rejected the Agency’s offers for temporary assignments
and because he continuously conditioned his requests on a transfer
assignment for CW1. In January 2007, Complainant finally submitted a
request without conditions and the request was immediately granted through
temporary assignments until Complainant was the successful bidder to a
Tour 2 position. As a result, the AJ determined that Complainant was
not denied reasonable accommodation.
As to Complainant’s disparate treatment claims, the AJ determined that
Complainant had not established a prima facie case of discrimination on
the alleged bases. Specifically, Complainant failed to show that he was
subjected to adverse treatment by the Agency. Complainant sought an
accommodation for his impairment and the Agency offered to provide an
accommodation. Further, as to reprisal, the AJ found that Complainant
failed to provide any evidence showing a causal connection between
his prior protected activity and the Agency’s actions regarding his
accommodation request. As a result, the AJ held that Complainant had
not been discriminated against as alleged. The Agency subsequently
issued a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency subjected him to
harassment and discriminatory treatment because he assisted another
employee with her EEO activity. Further, Complainant argues that he
and CW1 were denied reasonable accommodation even after being told that
it could be done easily. 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
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 (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 cause an undue hardship. See 29 C.F.R. §§
1630.2 (o) and (p). The Commission shall assume without deciding (for
the purposes of this decision) that Complainant is a qualified individual
with a disability.
Upon review of the entire record in this case, the Commission finds
that Complainant has not established that the Agency failed to provide
him reasonable accommodation in violation of the Rehabilitation Act.
The record reveals that on September 25, 2006, Complainant requested
that he and CW1 be transferred to Tour 2 in the same facility, with the
same work hours and days off as reasonable accommodation. ROI, Ex. 8.
S1 instructed Complainant to submit a separate request from CW1, but he
refused to do so. ROI, at 194. S1 offered to place Complainant on Tour
2 with a temporary schedule change in the meantime while he submitted
a permanent bid for a Tour 2 position. Id. Complainant refused the
schedule change, and instead, submitted a Tour 2 bid conditioned on
CW1’s transfer to Tour 2. Id. The bid was rejected because the
Agency does not allow “conditional” bid assignments and Complainant
refused to submit a bid without conditions. Id. at 194-95.
Complainant finally agreed to submit a temporary schedule change for
just himself and it was approved on January 21, 2007. ROI, at 195.
The record further reveals that Complainant received temporary schedule
changes to Tour 2 until he was the successful bidder for a Tour 2 position
on March 31, 2007. ROI, at 287-95, 307.
While Complainant may not have been offered the reasonable accommodation
of his preference, an employer is not required to provide the
precise accommodation the employee or applicant wants, so long as the
accommodation offered is an effective one under the circumstances of
the situation. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002).
Complainant has not offered any evidence that the various accommodations
offered to him were ineffective. Accordingly, the Commission finds
that Complainant has not established that he was denied reasonable
accommodation in violation of the Rehabilitation Act.
To the extent that Complainant is alleging disparate treatment and
reprisal (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
discriminatory or retaliatory animus was a factor in the Agency's actions.
At all times, the ultimate burden remains with Complainant to demonstrate
by a preponderance of the evidence that the Agency's reasons 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 or retaliated against as alleged.
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:
______________________________ February
1, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
1 In addition, Complainant raised allegations of a breach of a settlement
agreement. The Agency did not accept the breach allegation with this
complaint and processed it separately.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
6
0120110463
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013