0120072414
08-20-2007
Raina Kugler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Raina Kugler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072414
Agency No. 4A-110-0119-06
Hearing No. 520-2007-00117X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 27, 2007 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.
At the time of the events at issue, complainant was employed as a Clerk
at a New York facility of the agency. On January 10, 1997, complainant
sustained an on-the-job injury and submitted a claim to the Department
of Labor, Office of Workers' Compensation Programs (OWCP), which was
approved. Complainant was diagnosed with permanent multiple lumbar
(back) injuries, that included radiculopathy and parestheses. In 1998,
following a medical absence, complainant began receiving limited duty
job assignments at work.
Effective August 23, 2003, the agency placed complainant in a limited
duty position in the Customer Forwarding System (CFS) unit at the
Brooklyn General Mail Facility (GMF). The agency indicated that the
limited duty job assignment included a six-hour daily shift, non-service
days of Sunday and Monday, and restrictions on lifting, pulling/pushing,
bending/stooping, and twisting/reaching above shoulder level. The notice
of her transfer to the Brooklyn CFS indicated that she would be assigned
to work in Return to Sender (RTS), and noted that "[t]his assignment
has been prepared to continue reasonable accommodation to your injury
commensurate with your restrictions...". Complainant accepted the
assignment, and asserts that the work in the RTS unit was within her
medical restrictions and adequately accommodated her disability.
Effective March 11, 2006, the agency terminated complainant's assignment
at the Brooklyn GMF, and offered her a limited duty assignment at its
Adelphi Station facility. Again, in its notice, the agency stated that
"[t]his assignment has been prepared to continue reasonable accommodation
to your injury commensurate with your restrictions...". The agency
asserted that it needed to reassign complainant because the CFS unit
was closing. Complainant, however, contends that the RTS unit, where
she had been working, was not closing. Moreover, she claims that of
the employees working in the RTS unit, she was the only one slated for
reassignment. The agency asserted that complainant's six-hour shift
and duties within her medical restrictions would remain at Adelphi,
but that her non-service days would change to Sunday and Thursday.
Complainant refused to accept the new assignment, contending it would
require her to work outside her medical restrictions. The record shows
the agency charged complainant with absence without leave (AWOL) from
March 11, 2006 to May 11, 2006, following its Adelphi Station offer.
Complainant filed a formal EEO complaint dated June 21, 2006, alleging
that the agency discriminated against her on the bases of sex (female),
religion (Judaism), disability (back injury), and reprisal for prior
protected EEO activity when: (1) on March 18, 2006, a manager did not
allow her to "clock-in" for work at the Brooklyn GMF and ordered her to
report to the agency's Adelphi location, (2) on March 22, 2006, she was
not permitted to work at Adelphi without PS Form 2499X (a written job
offer), (3) her new job assignment changed her non-service (rest) days,
(4) from March 11, 2006 to May 11, 2006, she was placed on AWOL status
when she did not sign a written job offer immediately and asked for time
for her physician's review, and (5) in April 2006, she was threatened
with disciplinary action. The agency accepted claims (1) through (3)
only and those are the claims at issue herein.1
After the agency conducted its investigation of complainant's accepted
claims, it issued complainant a notice of right to request a hearing
before an EEOC Administrative Judge (AJ) or an immediate final decision
by the agency. Complainant requested the former.
The AJ issued Notice of Intent to Issue Decision without a Hearing,
to which both complainant and the agency responded. Without a hearing,
the AJ found no discrimination. The AJ concluded that complainant failed
to establish a prima facie case of discrimination based on sex, religion,
disability or reprisal, or that the legitimate, nondiscriminatory reasons
articulated by the agency are pretext. The AJ stated that complainant
failed to identify similarly situated individuals who are outside of
her protected classes and were treated more favorably. Further, the AJ
concluded that while complainant established that her impairment rose to
the level of a covered disability, she failed to show that the agency's
actions were based on said disability or that the new assignment (Adelphi)
was not reasonable accommodation. Regarding reasonable accommodation,
the AJ noted that the agency submitted the Adelphi Station job offer to
the Department of Labor, OWCP for review, which found it suitable.
On March 27, 2007, the agency issued a final order implementing the
AJ's decision.
This appeal from complainant followed. On appeal, complainant
asserted that: (1) the AJ issued his decision before the expiration of
complainant's time-frame to submit a rebuttal response to the agency's
summary judgment brief,2 (2) the agency removed her from a reasonable
accommodation assignment in the RTS unit that she worked for more than
a year and did not explain why she could not remain in the department
and position of accommodation, and (3) she was concerned that the new
position in Adelphi Station would not meet her medical restrictions,
and an appeal on the suitability of the job offer was pending before
the Department of Labor, OWCP. Complainant asked that we vacate the
decision of the AJ and the final action of the agency, and remand the
complaint for a full 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. Anderson 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.
Anderson 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 Corp. 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.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redman 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 Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 7-1 (November 9, 1999); 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." Mi S. Bang v. United States Postal Service,
EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995).
As an initial matter, we note that complainant is correct that she was
not given the opportunity to respond to the agency's summary judgment
brief within the time-frame originally allotted by the AJ. It is unclear
why the AJ issued his decision prior to the expiration of the response
time he provided to the parties. However, the impact of this error on
the outcome of the AJ's decision is unclear from the record. Therefore,
we will examine the merits of the AJ's decision.
After a careful review of the record, we find that the AJ erred when he
concluded that there was no genuine issue of material fact in this case.
Complainant has asserted two separate theories of discrimination.
The first is disparate treatment based on her sex, religion, disability
and reprisal for engaging in prior EEO activity when she was reassigned to
the Adelphi station. The agency's proffered legitimate, nondiscriminatory
reason for the reassignment was the closing of the Brooklyn CFS unit.
However there are outstanding issues of material fact that impact on a
conclusion about whether or not this articulated reason is pretextual.
Specifically, questions exist about what Brooklyn unit (CFS or RTS)
complainant was actually working in; what Brooklyn unit, if any, closed;
whether other employees where complainant was working were displaced
and, if so, to what protected classes do they belong; and why was
complainant removed from the Brooklyn facility to which she was assigned
for reasonable accommodation on the date specified (the record suggests
that not everyone was moved at the same time). These facts should be
developed at a hearing on complainant's claim.
Complainant's second theory of discrimination is that she was denied
reasonable accommodation to her disability. We note that the AJ
specifically found that complainant was a qualified individual with a
disability within the meaning of the Rehabilitation Act, and therefore,
entitled to reasonable accommodation. The AJ concluded, however, that
the Adelphi position would have adequately accommodated complainant's
disability. Complainant, on the other hand, has asserted that her
position in the Brooklyn RTS unit was providing her with adequate
reasonable accommodation to her disability, that there was no legitimate
reason to reassign her, and has raised questions about whether the Adelphi
assignment would have met her medical restrictions. For example, the
Adelphi job offer indicates she would be required, among other things,
to sell stamps and money orders. The record contains a letter from her
physician, dated April 24, 2006, questioning whether "working a cash
register and/or any counter/window position" would meet her medical
restrictions. Complainant further notes that the AJ relied heavily on
the suitability determination by the Department of Labor, OWCP of the
Adelphi assignment and indicates that her appeal of that determination
was still pending before the Department of Labor. Again, these issues
will have to be resolved at a hearing.
For these reasons, the Commission vacates the finding of no discrimination
by the AJ and the agency, and remands the matter for a hearing in
accordance with this decision and the Order below. We find the record
contains genuine issues of material fact and warrants further fact
finding and that summary judgment was inappropriate.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
district office the request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit 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 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 20, 2007
__________________
Date
1 The agency dismissed claims (4) and (5) as moot because the AWOL
was later rescinded and complainant was compensated for the period.
Complainant has not appealed the dismissal and these claims will not be
addressed further in this decision.
2 The AJ's "Notice of Intent to Issue Decision Without a Hearing"
indicated that both parties were required to submit a response within 15
days of receipt of the notice, and that either party also had the right
to submit a rebuttal within five days of receipt of the other party's
response. The record indicates that the agency submitted its response
by facsimile on March 13, 2007, and the AJ issued his decision on March
14, 2007, one day after receiving the agency's response and before the
expiration of complainant's five-day period to submit a rebuttal.
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0120072414
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120072414