0120140022
02-02-2017
Calvin D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Calvin D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120140022
Hearing No. 530-2012-00136X
Agency No. 1C-151-0023-11
DECISION
On September 23, 2013, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 20, 2013 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. For the following reasons, the Commission VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether there exist genuine issues of material fact such that the Equal Employment Opportunity Administrative Judge's (AJ's) issuance of a decision without a hearing was not appropriate.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Pittsburgh, Pennsylvania Processing and Distribution Center. In July 2011, Complainant contacted an EEO Counselor. Thereafter, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (tarsal tunnel syndrome in legs; cubital tunnel syndrome in arms) and reprisal for prior protected EEO activity when:
1. On numerous occasions from May to September 2011, management moved him from his limited-duty modified assignment, forced him to perform clerk work on the dock that violated his work restrictions, and did not give him the higher rate of pay associated with clerk work.
2. On September 5, 2011, management did not permit him to work the Labor Day holiday despite his request to do so.
3. On September 23, 2011, management provided him with a limited-duty modified assignment offer that violated his work restrictions.2
4. Beginning in April 2011, management has denied him the opportunity to work overtime.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. On October 2, 2012, the Agency filed a motion for a decision without a hearing. On October 16, 2012, Complainant filed an opposition to the Agency's motion.
On August 29, 2013, the AJ granted the Agency's motion and issued a decision finding no discrimination. As a procedural matter, the AJ noted that Complainant did not respond to the Agency's motion. As to the merits, the AJ analyzed Complainant's claims under a disparate treatment framework. The AJ found that Complainant was a qualified individual with a disability under the Rehabilitation Act and assumed that he had established a prima facie case of retaliation. The AJ, however, found that Complainant did not show that the legitimate, nondiscriminatory reasons articulated by the Agency for its actions were pretextual.
Regarding claims 1 and 3, the AJ found that there was no evidence that the work performed by Complainant violated his work restrictions. In addition, the AJ found that the work performed by Complainant was not considered clerk work. Regarding claim 2, the AJ found that there was no evidence that management had scheduled any employees on Complainant's tour and work unit/pay location to work on the Labor Day holiday. In addition, the AJ found that management permitted Complainant to work other holidays in 2011. Regarding claim 4, the AJ found that Complainant worked approximately 37 hours of overtime from March 2011 to February 2012.
The Agency subsequently issued a final order fully implementing the AJ's decision. Complainant then filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in stating that he did not respond to the Agency's motion, that the AJ did not consider his response, and that there are genuine issues of material fact in dispute. In his response to the Agency's motion, Complainant had argued that management violated his work restrictions when it required him to stand on the dock to count mail; and he had a work restriction of standing for one hour intermittently, but management made him stand for up to one hour continuously and did not provide him with a chair to sit on. In addition, Complainant argued that management violated his work restrictions when it required him to "tray up" Netflix movies; he had work restriction of simple grasping for four hours intermittently, but management made him grasp continuously for hours at a time.
In opposition to Complainant's appeal, the Agency contends that Complainant's response to its motion did not raise any genuine issues of material fact. Specifically, among other things, the Agency reiterates that the AJ properly found no evidence that Complainant performed work outside of his work restrictions.
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), Ch. 9, � VI.B (Aug. 5, 2015) (providing that an AJ'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 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 EEO MD-110, Ch. 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
We must 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). 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995). We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, Ch. 7, � I; see also 29 C.F.R. � 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995).
After a careful review of the record, we find that the AJ erred in issuing a decision without a hearing with respect to claims 1 and 3 because there is a genuine issue regarding whether management forced Complainant to perform work that violated his work restrictions.
According to Complainant's April 2, 2010, Duty Status Report, his work restrictions included the following: standing for one hour intermittently; lifting/carrying up to 15 pounds for two hours intermittently; simple grasping for four hours intermittently; fine manipulation for four hours intermittently; and no reaching above the shoulder. ROI, Ex. 6, at 1. According to Complainant's September 23, 2011, limited duty modified assignment offer, the duties included: (a) performing mail handler duties for scanning on the dock for one to eight hours; and (b) traying Netflix for one to eight hours. ROI, Ex. 5, at 2. In addition, the physical requirements included: (i) walking/standing for one hour; (ii) repetitive movements with upper appendages for one to eight hours; and (iii) sitting, reaching, and lifting for one to eight hours. Id.
The record contains conflicting evidence as to whether management violated Complainant's standing restriction (one hour intermittently) when it required him to work on the dock. Specifically, Complainant averred that, on multiple occasions, management required him to stand for up to one hour continuously; that he asked management if he could sit; and that management did not respond or provide a chair. ROI, Aff. A, at 39, 42, 49, 84. In contrast, management averred that it did not recall if Complainant requested a chair while on the dock but it would have provided the chair; that it instructed him not to work outside of his restrictions; that it told him to sit down if there was a period of time he needed to sit down; and that the duty of scanning on the dock, as described in the offer, did not violate his restrictions. ROI, Aff. B, at 7; Aff. C, at 5-7; Aff. F, at 15.
In addition, the record contains conflicting evidence as to whether management violated Complainant's simple grasping restriction (four hours intermittently) when it required him to "tray up" Netflix movies. Specifically, Complainant averred that management forced him to grasp and "tray up" Netflix movies continuously "for hours at a time" and "all day." ROI, Aff. A, at 34, 47, 51, 70, 73, 85, 93. In contrast, management averred that the duty of traying Netflix movies, as described in the offer, did not violate Complainant's restrictions. ROI, Aff. F, at 15.
Based on the above, we find that there is a genuine issue about whether management forced Complainant to perform work that violated his work restrictions. The issue is material to the disposition of Complainant's complaint because it affects whether the Agency provided him with a reasonable accommodation. In finding that there was no evidence the work Complainant performed violated his work restrictions, the AJ improperly credited management's affidavit testimony over Complainant's affidavit testimony.
CONCLUSION
In summary, there is a genuine issue of material fact which requires an assessment as to the credibility of Complainant and management. Therefore, judgment as a matter of law for the Agency should not have been granted. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission VACATES the Agency's final order and REMANDS the entire complaint to the Agency in accordance with this decision and the Order below.3
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Cleveland Field Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/2/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant accepted the offer, but indicated on the offer that he was "signing under protest" because the offer violated his work restrictions. Report of Investigation (ROI), Ex. 5, at 2.
3 In order to avoid fragmentation, we will not address the merits of Complainant's remaining claims at this time.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120140022
2
0120140022