0120122397
11-01-2012
Tamara C. Lopez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Tamara C. Lopez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122397
Hearing No. 450-2012-00033X
Agency No. 4G-870-0033-08
DECISION
On April 26, 2012, Complainant filed an appeal from the Agency's April 12, 2012, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issue presented is whether the Administrative Judge properly issued a decision without a hearing, and whether she properly found that Complainant did not established that she been discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales and Service Associate at the Agency's Las Cruces, New Mexico, Post Office. On May 23, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race/national origin (Hispanic),1 sex (female), disability, and in reprisal for prior protected EEO activity arising under Title VII and the Rehabilitation Act when:
1. from January 31, 2008, she was not reasonably accommodated; and
2. on May 16, 2008, she was constructively discharged.
The Agency issued a Letter of Partial Acceptance/Partial Dismissal of Formal EEO Complaint on June 16, 2008. The Agency accepted claim 1 for investigation, but dismissed claim 2. It based its dismissal on 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, finding that the work conditions experienced by Complainant were not so severe or intolerable that a reasonable person would feel compelled to resign.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). As discussed in Lopez v. U.S. Postal Service, EEOC Appeal No. 0120091185 (June 6, 2011), Complainant attempted to request a hearing, but the AJ's dismissal of her hearing request based on her failure to serve the Agency with her hearing request was found not to have been an abuse of discretion. However, that decision also found that the Agency's dismissal of Complainant's claim that she had been constructively discharged should be reversed, as Complainant had stated an actionable claim. The decision then vacated the Agency's finding with respect to claim 1, noting that claims 1 and 2 were intertwined and should not have been fragmented. Both claims were remanded to the Agency for an investigation into her constructive discharge claim and its relationship to her claim that she had been denied a reasonable accommodation. The Commission ordered the Agency to conduct a supplemental investigation, and provide Complainant with a copy of the report of investigation and notification of her right to request a hearing before a Commission AJ or a final agency decision.
The Agency conducted a supplemental investigation, after which Complainant timely requested a hearing before a Commission AJ. On March 12, 2012, the Agency filed a Motion for Findings of Fact and Conclusions of Law without a Hearing. Complainant did not file a response to the Agency's Motion. The AJ assigned to the case issued a decision without a hearing on March 31, 2012.
In her decision, the AJ found the facts to be as follows: Complainant had been diagnosed with Post Traumatic Stress Disorder, or PTSD, beginning in 1996. Although Complainant filed a claim with the Office of Workers' Compensation Programs (OWCP) regarding her PTSD, OWCP did not find that it was work-related.
Complainant had engaged in EEO activity prior to the instant complaint, both in 1997 and in 2006. Pursuant to an EEO settlement agreement in 1997, a job assignment was created for Complainant in which she was assigned to Tour II with work hours between 6:00 a.m. and 7:00 p.m., with Saturdays and Sundays off. In 2001, the union filed a grievance objecting to the settlement agreement because it violated the terms of the collective bargaining agreement in creating a position for Complainant. On January 11, 2006, a pre-arbitration agreement between the union and the Agency declared Complainant's assignment null and void, and returned her to Tour III. She was offered a modified job assignment with duty hours of 5:00 p.m. to 1:30 p.m. with Saturdays and Sundays off, which she accepted. In April 2006, Complainant was awarded a Sales and Services Associate position through the bid process.
On March 9, 2007, Complainant was notified that her Sales and Service Associate position was to be abolished and that she would become an unassigned regular full-time employee. She was given assignment orders with hours of 7:45 a.m. to 4:45 p.m., with Sundays and either Wednesdays or Thursdays off. Soon after, Complainant submitted a request for a reasonable accommodation to work daytime hours limited to between 6:00 a.m. and 6:00 p.m. with weekends off. A letter from her physician dated March 12, 2007, requested daytime hours with Saturdays and Sundays off, and stated, "It is clinically necessary for [Complainant] to be home with the established regimen noted above to maintain the established routine of the minor children in the home. It is also clinically necessary for the mental health and safety of [Complainant] and the minor children in the home." On March 26, 2007, the Agency asked for medical documentation substantiating the need for the requested schedule.
By letter dated April 10, 2007, Complainant's physician advised the Agency that Complainant's anxiety was recurring due to "changes in accommodations that have been established at work." On August 8, 2007, Complainant submitted another request for reasonable accommodation, again requesting day hours with Saturdays and Sundays off. She advised that it was "clinically necessary" for her and her children to spend evenings and weekends together. On August 21, 2007, the Agency again requested supporting specific medical documentation, noting that it could not consider Complainant's request without it. In an August 31, 2007 letter, Complainant's physician advised the Agency that Complainant was experiencing anxiety, sleep disturbances, and other symptoms said to be related to a hostile work environment. The physician recommended that Complainant work day shifts only.
The Agency wrote to Complainant on October 17, 2007, informing her that it had received her medical documentation but that additional documentation was needed because her submissions had reflected that the request for a schedule change was not based on medical necessity but rather was to facilitate her ability to care for her children. Complainant's physician's letter of November 8, 2007 repeated his earlier assessment but specified that Complainant needed Saturdays and Sundays off.
On January 3, 2008, Complainant was approved for Family Medical Leave Act (FMLA) leave to care for her minor son's health condition for up to 24 times per year to attend scheduled therapy appointments and up to 2 times per month for individual care. On January 30, 2008, she was offered a modified assignment as a Sales and Service Associate within her medical restrictions, with hours from 11:00 a.m. to 8:00 p.m. with Sundays and Wednesdays off; she accepted the assignment on February 28, 2008. On February 14, 2008, she was approved to use FMLA for her condition, which she utilized on 12 successive Saturdays.
By letter dated March 7, 2008, Complainant's physician reiterated that Complainant needed to work daytime hours, going no later than 6:00 p.m., with Saturdays and Sundays off. On May 12, 2008, Complainant submitted a letter of resignation from her position with the Agency, effective May 16, 2008. On December 30, 2008, Complainant was approved for disability retirement effective May 10, 2008.
The AJ's decision assumed that Complainant had established her prima facie cases of national origin, sex, disability, and reprisal discrimination. She found that the Agency had articulated legitimate, nondiscriminatory reasons for denying Complainant's requested accommodation. The AJ noted that Complainant and the Agency engaged in an extended series of correspondences in which Complainant asserted her need to work daytime hours and have weekends off, while the Agency requested medical documentation which would link Complainant's requested accommodation to her medical condition of PTSD. The AJ found that the Agency offered legitimate, nondiscriminatory reasons for not adjusting Complainant's work schedule, and that Complainant had not shown these reasons to be pretext for discrimination on her claimed bases.
The AJ also found that Complainant had "failed to provide medical documentation that established that she had a disability that required her to work only during daytime hours on weekdays as an accommodation. Nothing she submitted demonstrated that in and of itself, the PTSD prevented her from working weeknights and weekends." She found that Complainant had failed to demonstrate a nexus between her own claimed disabling condition and her requested accommodation. Instead, the AJ found that Complainant was claiming that her work schedule was the cause of her stress and anxiety, due to its impact on her family life and responsibilities. She noted that Complainant had been approved for FMLA leave in order to attend to the medical condition of her minor son, and that she was allowed to use it on Saturdays when she was scheduled to work.
As to Complainant's claim of constructive discharge, the AJ concluded that a reasonable person would not have found Complainant's working conditions at the Agency to be intolerable. The AJ found that the Agency's failure to change Complainant's work schedule to what was requested, day shifts only and weekends off, was not discriminatory and therefore, not sufficient to constitute a constructive discharge. The AJ concluded that Complainant had not established that she had been discriminated against based on her national origin, sex, disability or in reprisal for prior EEO activity.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
Commission records do not reflect that Complainant submitted a brief in support of her appeal. The Agency submitted a brief in opposition to Complainant's appeal in which it argued that the decision of the AJ and its final action should be affirmed.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and the Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Decision without a hearing
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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case we find that the AJ's decision to issue a decision without a hearing was appropriate. The AJ viewed the evidence in the light most favorable to Complainant when considering Complainant's allegations. There was no need to resolve any issues of credibility. Complainant did not file an opposition to the Agency's Motion for a Decision without a Hearing. There is no record that she filed any brief on appeal arguing that there were facts in dispute, or credibility findings which needed to be made pursuant to a hearing. Therefore, we find that a decision without a hearing was properly issued.
Qualified Individual with a Disability/Reasonable Accommodation
This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
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. 29 C.F.R. �� 1630.2(o) and (p). Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Oct. 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she 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.
We assume for purposes of analysis, without so finding, that Complainant is an individual with a disability on account of her condition of PTSD. We find that Complainant requested a reasonable accommodation, and that the Agency then engaged in the interactive process with Complainant in an attempt to identify her work-related limitations and any possible accommodations which would allow her to perform the essential functions of her position. Complainant did not provide information which demonstrated that her requested accommodation, an adjustment to her schedule to work on day shifts and weekdays only, was related to her condition of PTSD; rather the information submitted reflected that the request accommodation was designed to accommodate the needs of her children and family. We find that the Agency did not fail to reasonably accommodate Complainant's disability.
Disparate treatment
To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that she was discriminated against as alleged. Assuming that Complainant established a prima facie case of national origin, sex, disability, and reprisal discrimination with respect to the Agency's denial of her request to change her schedule, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant did not show that Agency's reasons to be pretext for discrimination.
Likewise, we find that Complainant has not shown that her working conditions were so intolerable that a reasonable person in her situation would have felt compelled to resign rather than continue employment with the Agency. We therefore find that Complainant has not shown that she was constructively discharged as a result of the Agency's failure to change her work schedule.
CONCLUSION
Based on a thorough review of the record and in the absence of contentions on appeal from Complainant, we AFFIRM the Agency's final order, which implemented the AJ's finding that Complainant did not establish that she was discriminated against as alleged.
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
November 1, 2012
Date
1 Because the Commission considers "Hispanic" to denote a national origin, we will characterize Complainant's basis as a claim of national origin discrimination.
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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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