0120110469
02-29-2012
Shirley A. Duberry, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Shirley A. Duberry,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120110469
Hearing No. 510-2010-00164X
Agency No. 4H-330-0186-09
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts, for de
novo review, Complainant’s appeal from the Agency’s September 20,
2010 final order 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 the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Carrier Technician at the Agency’s Normandy Station in Miami
Beach, Florida. In August 2007, Complainant and the Agency settled a
prior EEO complaint. Pursuant to the settlement agreement, Complainant
underwent a fitness-for-duty examination. The examination resulted in
Complainant receiving the following permanent medical restrictions:
lifting and carrying limited to 15 pounds occasionally; no carrying
a satchel; and only occasional and intermittent pulling, pushing and
reaching above shoulder level.
In March 2008, Complainant submitted documentation from her doctor
indicating that she could return to work with no restrictions. On March
7, 2008, Complainant and the Agency settled another EEO matter regarding
light duty work hours. That settlement agreement provided that if
the Union requested a referee opinion, the Medical Unit would select
a board-certified specialist consistent with the collective bargaining
agreement.1 The agreement further stipulated that management would be
guided by the results of the referee’s opinion and that Complainant
would provide a letter from her personal physician explaining her initial
diagnosis to be included in her medical records and personnel files.
On July 21, 2008, Complainant underwent a third opinion examination
by a referee physician agreed upon by the Union and Agency management.
The referee physician agreed with Complainant’s original restrictions
and limitations of no lifting/carrying more than 15 pounds, no carrying a
mail satchel, and no persisted overhead reaching. The referee physician
stated that in his opinion, these restrictions and limitations were
permanent and would prevent harm to Complainant.
Complainant has not reported to duty since April 2008. On April 15,
2009, the Station Manager (M1) issued Complainant a Removal from Duty
Assignment memorandum. The memorandum notified Complainant that she was
being removed from her Carrier Technician position because her condition
prevented her from performing the full duties of her bid position.
Effective April 25, 2009, Complainant become an unassigned regular
Carrier. Sometime in March or April 2009, Complainant bid for another
Carrier position. On April 20, 2009, M1 sent Complainant a letter
informing her that her bid for the Carrier position was disqualified
because her permanent physical limitations and restrictions prevented
her from performing the duties of the Letter Carrier assignment.
On October 5, 2009, Complainant was issued a Notice of Separation based
on her inability to perform the essential functions of her position.
The Notice stated that Complainant had failed to report for duty in her
position since April 2, 2008, and that she had been in leave without pay
(LWOP) status since that date. As it appeared unlikely that Complainant
would be returning to perform the duties of her position, the Notice
informed Complainant that she was being separated from the Agency.
On July 15, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of age (55) when:
1. On April 15, 2009, she was notified that she would be removed from
her Carrier Technician position effective April 25, 2009, and
2. On April 20, 2009, she was notified that her most recent bid submission
was disqualified.
Complainant subsequently amended her complaint to allege that she was
discriminated against on the bases of race (African-American) and age
(55) when:
3. On October 5, 2009, she was issued a Notice of Separation.2
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her
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 August 16, 2010.
In the decision, the AJ initially assumed arguendo that Complainant had
established a prima facie case of discrimination on the alleged bases
and found that the Agency had articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the AJ found that there was no
dispute that Complainant agreed in a prior EEO settlement agreement
that she would submit to a third opinion medical examination by a
referee physician and that the Agency would abide by that medical
determination. The referee physician concurred with Complainant’s
original restrictions: no lifting/carrying more than 15 pounds,
no carrying a mail satchel, and no persisted overhead reaching. As a
result, Complainant was issued the Removal From Duty Assignment memorandum
because she could not perform the full duties of her bid position.
As to claim (2), Complainant’s bid for another Carrier position was
disqualified because her physical limitations and restrictions prevented
her from performing the duties of the Letter Carrier assignment. Finally,
regarding claim (3), Complainant was issued the Notice of Separation
because of her inability to perform the essential functions of her
position and because she had been in LWOP status since April 2, 2008.
The AJ determined M1 could not have done anything differently without
violating the settlement agreement and the referee physician’s medical
opinion.
In attempting to establish pretext, Complainant argued that the Agency
should not have followed the third opinion medical report; rather, the
Agency should have followed her physician’s report instead. The AJ
determined that this was not what Complainant and the Agency agreed to in
the prior settlement agreement. Further, the AJ found that there was no
dispute that Complainant was unable to perform her job functions based on
the limitations in the third opinion medical report. As there was nothing
to indicate that the Agency’s actions were based on Complainant’s
age or race, the AJ held that Complainant was not discriminated against
as alleged. The Agency subsequently issued a final order adopting the
AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she has been cleared to return to
work full time with no restrictions. Complainant contends that she
was discriminated against based on her age and race when she was pulled
off her route and not accommodated. Further, Complainant argues that
the Agency refused to accept documents from her doctor clearing her to
return to work. 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 her 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.
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furuco Constr,
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the Agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); PaveIka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, the Commission finds that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, as
to claim (1), M1 affirmed that pursuant to the March 7, 2008 settlement
agreement, Complainant was sent for a third fitness-for-duty examination.
ROI, at 152. The results of that examination revealed that she could not
perform the duties of the letter carrier position. Id. As a result, M1
notified Complainant that she would be removed from her Carrier Technician
position, and she became an unassigned regular carrier. Id. at 338.
Regarding claim (2), M1 asserted that she notified Complainant that her
bid submission for the Carrier Technician position was disqualified based
on her medical documentation. ROI, at 157. Specifically, M1 confirmed
that Complainant’s physical limitations and restrictions prevented her
from performing the duties of the carrier position. Id. at 158, 340.
Finally, as to claim (3), M1 maintained that Complainant had been in
LWOP status for over 365 days. Id. at 163. The collective bargaining
agreement provides that at the expiration of one year of continuous
absence without pay, an absent employee may be separated. Id. at 400.
As a result, M1 issued Complainant the Notice of Separation. Id. at 163.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the
Agency’s proffered explanation is unworthy of credence. Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. at 256.
Complainant argues that she has presented documentation from her doctor
indicating that she can return to work without any restrictions. However,
the record reveals that the parties agreed that the referee physician’s
medical opinion would be relied upon in determining Complainant’s
restrictions and limitations or lack thereof. The referee physician
concurred with Complainant’s original diagnosis and restrictions and,
as a result, the Agency determined Complainant could not perform the
duties of the Carrier Technician position.
While the Commission subsequently found that the settlement agreement
was void for lack of consideration, the record reveals that the Agency
relied upon it believing it to be a valid agreement. Further, the
settlement agreement mirrored the procedure provided in the collective
bargaining agreement. Thus, construing the evidence in the light most
favorable to Complainant, the Commission finds that Complainant has not
shown that the Agency's actions were based on discriminatory animus or
that the reasons articulated by the Agency for its actions were pretext
to hide discrimination.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 29, 2012
Date
1 The Commission notes that in Duberry v. U.S. Postal Serv., EEOC Appeal
No. 0120090754 (June 4, 2010), the Commission found that the settlement
agreement was void for lack of consideration.
2 Complainant does not allege that any of the Agency’s actions were
based on disability discrimination.
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0120110469
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110469