Allen M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Dec 12, 2018

0120170370 (E.E.O.C. Dec. 12, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Allen M.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120170370

Hearing No. 480-2015-00452X

Agency No. 4F-913-0073-13

DECISION

On November 1, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 26, 2016 decision 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 reasons which follow, the
Commission AFFIRMS the Agency’s decision.

ISSUES PRESENTED

The issues presented are whether the grant of summary judgment was proper, and whether
Complainant has proven by preponderant evidence that the Agency unlawfully failed to
accommodate him.

BACKGROUND

At the time of the complaint, Complainant worked as a City Letter Carrier at the Agency’s
Altadena Post Office in California.

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.
0120170370

2
On October 7, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of disability (physical) when it failed to provide him with a reasonable
accommodation, continuing from June 26, 2013.

After the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation 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
granted the Agency’s motion for summary judgment. The AJ issued a decision on September 30,
2016. The Agency subsequently issued a decision adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

Factual Background

On December 9, 2011, Complainant filed a claim with the Department of Labor’s Office of
Workers’ Compensation Programs (OWCP), which administers and processes all injury and
occupational disease claims for federal employees. Complainant alleged that he had an
occupational disease based on a neck sprain and temporary aggravation of cervical spondylosis
without myelopathy. His treating physician was a Fellow of the American Academy of Family
Physicians.

The OWCP accepted the workers’ compensation claim on March 16, 2012, and Complainant
received wage compensation and medical benefits for the work-related injury. On June 25, 2012,
the Agency offered, and Complainant accepted, a limited duty assignment.

Following an examination, Dr. A, an Orthopaedic Surgery Diplomate with the American Board of
Orthopaedic Surgery, issued a Second Opinion Evaluation on November 1, 2012. Although Dr.
A concurred with the assessment of Complainant’s injury, i.e., neck sprain and temporary
aggravation of cervical spondylosis without myelopathy, he concluded that Complainant had no
current, objective findings to support the diagnosis of a neck sprain and that Complainant’s neck
was normal, except for mild, minimal arthritis. Dr. A prepared a Work Capacity Evaluation for
Complainant in which he found Complainant was capable of performing his usual work without
restrictions.

On January 16, 2013, an OWCP Claims Examiner proposed the termination of Complainant’s
compensation benefits based on Dr. A’s opinion. No action was taken on the proposed termination
at the time.

In an OWCP Duty Status Report, dated June 20, 2013, Complainant submitted a report from his
treating physician who identified Complainant’s condition as a cervical spine disk syndrome. The
treating physician provided work restrictions on lifting, bending, and stooping. He limited twisting
the neck to 3.5 hours daily. On June 25, 2013, Complainant’s supervisor issued him a limited job
offer based on his treating physician’s restrictions. Complainant rejected the job offer on the
grounds that it violated his treating physician’s restrictions because it involved more than 3.5 hours
a day of bending, stooping, and twisting his neck.
0120170370

3
On June 26, 2013, the Agency gave Complainant an Employee Leave Information Letter, Refusal
advising him that because he had rejected the limited duty offer, he had to take leave until his
medical documentation was updated and a new determination could be made regarding available
work. Complainant was instructed not to return to work unless he accepted the limited duty job
offer or submitted new or updated medical documentation which would make possible a revised
assignment.

On July 10, 2013, the Agency wrote to the OWCP Claims Examiner requesting that she review
the June 25, 2013 job offer and determine whether the job offer was suitable based on
Complainant’s job restrictions that his treating physician had provided. The OWCP Claims
Examiner consulted with the Agency’s Health and Resource Management Specialist (HRMS). In
an August 2013 response, the HRMS stated that Complainant drove his vehicle from mailbox to
mailbox and the only twisting of his neck which would occur would be when he was driving and
did not amount to more than 3.5. hours daily.

Because of the conflict in the medical opinions of Complainant’s treating physician and Dr. A and
the information provided by the HRMS, the OWCP obtained an independent referee medical
examination from Dr. B, who was also a Diplomate with the American Board of Orthopaedic
Surgery, on October 22, 2013. On December 31, 2013, Dr. B issued a Work Capacity Evaluation
identifying Complainant’s medical restrictions. On April 29, 2014, Complainant submitted a letter
to the Agency’s Injury Compensation Office requesting that he be returned to duty within the
medical restrictions of Dr. B. Complainant also provided an April 14, 2014 OWCP Duty Status
Report, signed by his doctor (another treating physician) which contained medical restrictions that
were inconsistent with those of Dr. B.

On May 30, 2014, the OWCP issued a decision denying Complainant’s claim for wage-loss
compensation benefits ongoing from June 30, 2012.

On June 16, 2014, the Agency again contacted the OWCP to obtain guidance on the conflicting
medical opinions. Based on instructions from the OWCP Claims Examiner, the Agency identified
a position consistent with the Duty Status Report of April 14, 2014 from Complainant’s treating
physician. On July 7, 2014, the Agency sent Complainant an Offer of Modified Assignment, a
limited duty position, which was consistent with the April 14, 2014 Duty Status Report from
Complainant’s treating physician. Complainant accepted the position under protest. He asserted
that the physical requirements of the limited duty offer were beyond his medical restrictions
because he had to bend his neck up and down to “case” mail, look for parcels, pull down mail,
load trays of sorted mail, transfer mail to an Agency vehicle and deliver the mail.

On September 17, 2014, the Agency referred Complainant to the Agency’s District Reasonable
Accommodation Committee. On or about the same day, Complainant was offered, and accepted,
an eight-hour sedentary position as a Modified Mail Processing Clerk at the Los Angeles
International Service Center.

0120170370

4
AJ’s Decision

In her decision, the AJ determined that the undisputed record evidence was that Complainant was
not a qualified individual with a disability. The AJ noted that Complainant described his duties as
a City Carrier and that he could not perform the duties of his position. The AJ also noted that in
his affidavit, Complainant acknowledged that his restrictions were so severe that he could not carry
mail, an essential function of his job as a Carrier.

The AJ further determined that the Agency did not deny Complainant an accommodation. Noting
that Complainant could not perform the essential functions of his position, the AJ found no
evidence that there was an accommodation that would allow him to perform the essential functions
of his position or that there was a vacant, funded position which he could perform. The AJ
ultimately concluded that the Agency did not engage in disability discrimination.

CONTENTIONS ON APPEAL

Complainant contends that he was subjected to disparate treatment when he was forced to accept
a limited duty job offer which violated his medical restrictions and he was denied a reasonable
accommodation.

The Agency contends that its decision should be affirmed and that the grant of summary judgment
was proper. In this regard, the Agency asserts that Complainant presents no evidence that the AJ
committed reversible error; that he can perform the essential functions of his position with or
without an accommodation; or that a vacant, funded position existed. The Agency also asserts that
it was not obligated to cobble together “make work” for Complainant to perform.

ANALYSIS AND FINDINGS

This matter was decided on a grant of summary judgment. Therefore, 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 no genuine issue
of material fact exists. 29 C.F.R. § 1614.109(g); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). 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.

The AJ’s function is not to weigh the evidence but rather to determine whether there are genuine
issues for trial. Anderson v. Liberty Lobby, 477 U.S. at 249. In considering whether summary
judgment is proper, 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate.
0120170370

5
In addition, 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).

Upon review, we find that the grant of summary judgment was proper because there exists no
genuine issue of material fact that would warrant that the AJ hold a hearing. In order to
successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, Complainant has failed to do so. In addition, the
record is adequately developed and no findings of credibility need be made.

Complainant contends that the Agency discriminated against him when it failed to accommodate
him. Under the Rehabilitation Act, an “individual with a disability” is one who: (1) has a physical
or mental impairment that substantially limits one or more major life activities; (2) has a record of
such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g);
Melani F. v. Dep’t of Homeland Security, EEOC Appeal No. 0120150163 (May 19, 2017).

In order to establish that the Agency denied him 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 EEOC Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No.
915.002 (Oct. 17, 2002) (Enforcement Guidance).

We will assume, for the purpose of analysis only, that Complainant has a disability. The
Rehabilitation Act requires that the Agency provide a reasonable accommodation to a qualified
individual with a disability, absent undue hardship. 29 C.F.R. § 1630.9. A qualified individual
with a disability is an individual who satisfies the requisite skill, experience, education, and other
job-related requirements of the employment position such individual holds or desires, and who,
with or without reasonable accommodation, can perform the essential functions of such position.2
29 C.F.R. § 1630.2(m); Julius C. v. Dep’t of the Air Force, EEOC Appeal No. 0120151295 (June

2 The term “position” is not limited to the position held by the employee, but also includes positions
that the employee could have held as a result of reassignment. See Bill A. v. Dep’t of the Army,
EEOC Appeal No. 0120131989 (Oct. 16, 2016); Hampton v. U.S. Postal Service, EEOC Appeal
No. 01986308 (Aug. 1, 2002). A reassignment is the reasonable accommodation of last resort and
is required only after it has been determined that: (1) there are no effective accommodations that
will enable the employee to perform the essential functions of the employee’s position; or (2) all
other reasonable accommodations would impose an undue hardship. Enforcement Guidance at
Question 24.

0120170370

6
16, 2017). “Essential functions” are the fundamental job duties of the employment position that
the individual holds or desires. 29 C.F.R. § 1630.2(n). The Commission’s Enforcement Guidance
also explains that an employer does not have to eliminate an essential function of a position to
accommodate an individual with a disability. Enforcement Guidance at “General Principles;”
Gerald L. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130776 (Nov. 10, 2015).

Complainant has acknowledged, and the record supports a finding, that he cannot perform the
essential functions of his job as a City Letter Carrier with, or without, an accommodation.
Accordingly, Complainant is not a qualified person with a disability such that the Agency was
required to provide him with an accommodation.

It does not appear that Complainant requested an accommodation under the Rehabilitation Act
until September 2014. Previous to the September 2014 referral to the District Reasonable
Accommodation Committee, Complainant was pursuing his entitlement under the OWCP. We
note that in Byrd v. U.S. Postal Service, EEOC Appeal No. 0120090961 (Aug. 2, 2011), we
rejected Complainant’s argument that federal agencies should automatically provide reasonable
accommodation under the Rehabilitation Act to those who receive workers’ compensation
benefits. In Byrd, we also rejected the Complainant’s contention that “receipt of workers’
compensation benefits puts an agency on notice that the agency had to provide … an
accommodation.” Byrd also recognized that “[a]n employee’s rights under the Rehabilitation Act
are separate from [the employee’s] entitlements under a workers’ compensation law.” Byrd noted
that “[t]he purpose of the Rehabilitation Act is to prohibit federal agencies from discriminating
against qualified individuals because of disability in all aspects of employment. On the other hand,
the purpose of a workers’ compensation law is to provide a system for securing prompt and fair
settlement of employees’ claims against employers for occupational injury and illness.” Id.

Even if we assumed that Complainant were requesting a reasonable accommodation under the
Rehabilitation Act, we do not reach the conclusion that the Agency failed to accommodate him.
The record details the Agency’s efforts to accommodate and the conflicting medical opinions
regarding Complainant’s work restrictions. The Rehabilitation Act does not require an agency to
provide “make do” work, create “make work” jobs, or transform light or limited assignments into
permanent jobs to accommodate an employee’s disability. See Mengine v. Runyon, 114 F. 3d
415, 418 (3d Cir. 1997); Josephine S. v. Dep’t of Homeland Security, EEOC Appeal No.
0120161196 (June 26, 2018) (agency does no have to create “make do” or “make work” jobs);
Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122755 (Sept. 11, 2014) (employer not
required to provide “make do” work or create a job for a disabled employee); Woodard v. U.S.
Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003)(employer not required to transform
temporary light duty jobs into permanent jobs to accommodate a disability). In addition, we have
held that protected individuals are entitled to reasonable accommodation, not necessarily the
accommodation of the individual’s choice but one that is effective. Castaneda v. U.S. Postal
Service, EEOC Appeal No. 01931005 (Feb. 17, 1994).

0120170370

7
The record establishes that once Complainant went before the Agency’s District Reasonable
Accommodation Committee in September 2014, Complainant was offered, and accepted, an eight-
hour per day, sedentary position as a modified Mail Processing Clerk at the Los Angeles
International Service Center (LAISC) in September 2014.3

As a final matter, we note that Complainant argued that he was disparately treated regarding being
accommodated. The AJ correctly determined that the employees identified were not similarly
situated.

Construing the evidence in the light most favorable to Complainant, we conclude that the AJ’s
grant of summary judgment in favor of the Agency was proper. Complainant was not a qualified
person with a disability because he could not perform the essential functions of his position as a
City Letter Carrier. The Agency did not deny Complainant an accommodation. Moreover, the
Agency provided Complainant with work as a Modified Mail Processing Clerk which he accepted.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing
the AJ decision that the Agency did not deny Complainant an accommodation.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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).

3 The record indicates that management made efforts to find work for Complainant within his
restrictions, dated August 11, 2014. After searching inside the carrier craft and outside Tour 2 and
within the local commuting area, work was identified at the LAISC.
0120170370

8
All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal
Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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.

0120170370

9
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

December 12, 2018
Date