Anisa U.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 20180120171208 (E.E.O.C. Nov. 30, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anisa U.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120171208 Agency No. 1C-371-0013-13 DECISION On February 11, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 5, 2016 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisor, Distribution Operations (SDO) at the Agency’s Nashville, Tennessee Processing and Distribution Center (Nashville P&DC). Complainant was detailed to a position she identified as “Hiring Coordinator.” On May 14, 2013, she was informed by the Manager, Distribution Operations that she was being reassigned to a position in the “plant” identified as Supervisor Automation. Complainant objected to the reassignment because she had difficulty walking and the new position required a substantial amount of walking. 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. 0120171208 2 On August 29, 2013, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her on the bases of race (African-American), disability, age (62), and in reprisal for prior EEO activity when: on May 14, 2013, she was involuntarily reassigned from her duties as “Hiring Coordinator” back to her position as Supervisor, Distribution Operations (“Automation Supervisor”). After the investigation of the formal complaint,2 Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On December 5, 2016, the Agency issued the instant final decision finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Timeliness of Appeal As a threshold matter, the Agency, in response to Complainant’s appeal, argues that the instant appeal was untimely submitted. The Agency merely asserted without further elaboration, that Complainant received the Agency’s final decision on December 9, 2016. The record contains a USPS Tracking Results printout indicating that the December 5, 2016 final decision was delivered on December 9, 2016 “in/at Mailbox” in Nashville, Tennessee. There is, however, no signature receipt included. Therefore, we determine that Complainant filed a timely appeal with this Commission from the Agency’s final decision dated December 5, 2016. Reasonable Accommodation Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to provide reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p); EEOC’s Enforcement Guidance on Reasonable Accommodation and 2 On February 21, 2014, the Agency issued a final decision finding no discrimination. On appeal, the Commission reversed the Agency’s finding of no discrimination and remanded the matter to the Agency for further processing based on inadequate investigative record. Complainant v. United States Postal Service, EEOC Appeal No. 0120141580 (July 20, 2016). The Agency conducted a supplemental investigation and issued a new final decision, which is now the subject of the instant appeal. 0120171208 3 Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002). A long-time Agency employee and supervisor, Complainant has been diagnosed with a permanent bilateral impairment of the feet. She said that a number of bones in her toes have been removed and she has permanent metal screws on both sides of her right ankle. As a result, she said she has ongoing neuropathy in her feet and legs causing her considerable pain. Based on this evidence, we conclude that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. At the time of the events at issue, Complainant’s official position of record was as a Supervisor, Distribution Operations (SDO). The record shows, however, that in December 2010, Complainant was provided a modified/limited duty SDO assignment, which the Agency asserts was to fulfill its worker compensation obligations. Complainant’s primary duties were the hiring of casual employees, and monitoring security and making security badges. Complainant explained that the duties of Hiring Coordinator were performed off the plant floor and allowed her to sit down and avoid walking and standing. The record shows that Agency management had been informed of Complainant’s disability and its impact on her ability to walk. It appears from the record that Complainant had work restrictions for over a decade, limiting her walking and standing to only 10-20 minutes every couple of hours. In her EEO complaint, Complainant asserted that she was denied a reasonable accommodation when, on May 14, 2013, her duties were changed from Hiring Coordinator to Automation Supervisor. Complainant explained that returning to her supervisory position on the floor required her to supervise 10-16 employees whose work was scattered across the plant. She claimed the job required constant walking, which caused her considerable pain and violated her medical restrictions. In a Work/Activity Restriction Report dated June 12, 2013, submitted in support of Complainant’s attempt to avoid returning to the plant floor, her physician restricted Complainant to 1.5 hours of walking per day. Complainant alleged that the return to her supervisory duties would far exceed her walking restriction. To establish that she was denied a reasonable accommodation, 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 her with a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation. An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental job duties of the employment position that the individual holds or desires. Id. § 1630.2(n). 0120171208 4 Here, there is considerable question about whether or not Complainant is “qualified” for her SDO position. She contends that significant walking is an essential function of the supervisory position (according to her affidavit “an average of 5 miles per day”) and that she is medically restricted to only 1.5 hours of walking per day. The accommodation she was requesting (to remain performing the Hiring Coordinator duties) would not have enabled her to perform the essential functions of her supervisory position of record, but rather were duties assigned away from that position altogether. Reasonable accommodation is mainly designed to enable an employee to perform the essential functions of their position of record. If that is not possible, reassignment to a vacant, funded position can also be a required reasonable accommodation. Here, however, there is no evidence that Complainant sought a reassignment to another vacant funded position. The “Hiring Coordinator” was a collection of duties, but does not appear to have been a regular position for which employees could apply. Moreover, Complainant has not presented any evidence to suggest that, more likely than not, there was another vacant, funded position available for which she was qualified and could have been reassigned to during the relevant period. The record does show that, despite Complainant’s assertions that she could not perform as a SDO, the Agency provided Complainant with another offer of modified assignment/limited duty on July 8, 2013, as part of her reassignment back to her supervisory position. The duties of the modified position were to supervise automated, mechanized and manual operations. The modified physical requirements of the position included sitting at a desk (monitoring operations by computer) for 6.5 hours and walking/standing (monitoring operational performance) for 1.5 hours per day. Complainant accepted this position on July 17, 2013. We note that, although individuals protected under the Rehabilitation Act are entitled to a reasonable accommodation, they are not necessarily entitled to their accommodation of choice. See Castaneda v. United States Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). For the reasons stated above, we conclude that Complainant failed to prove the Agency violated its duty under the Rehabilitation Act to reasonably accommodate her disability. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 0120171208 5 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions. The District Manager (unknown race, disability, age) stated that from May 2013 to May 2014, he was the Senior Plant Manager at the Nashville P&DC. The District Manager stated that the Hiring Coordinator duties were merely ad hoc duties assigned to her as part of her SDO position. The District Manager stated, however, that during 2013, the supervisory complement “was reduced to the point where we no longer had the luxury of having SDOs in ad hoc positions. So, the decision was made to return Complainant to her Form 50 [official supervisory] position.” Further, the District Manager added that there were “other supervisors working in ad hoc positions who were returned to their Form 50 positions at that time.” The Acting Manager, In-Plant Support (Caucasian, over 40 years, unknown disability) stated that during the relevant period, he was the Lead Maintenance Manager. The Acting Manager explained that Complainant was returned to her Form 50 position of SDO in Automation due to staffing needs, by order of the former Manager, Distribution Operations.3 The Acting Manager explained that Complainant “had been working in an Ad Hoc Capacity as the Plant’s Hiring Coordinator, which was not an authorized EAS position. She was involved in the process of hiring craft employees… she was returned to her Form 50 position because of staffing needs.” The Manager of Human Resources (unknown race, disability, age), for whom Complainant was working while performing the Hiring Coordinator duties, stated that management wanted to have Complainant back in her Form 50 position because the facility “had several vacant positions and needed her back. The hiring duties were not a full-time position, and these duties are not part of the normal duties of a Supervisor, Distribution Operations.” The record also contains a series of emails between upper level management written between March and May 2013 discussing the need to change the SDOs’ hours and days off because of inadequate coverage due to the reduction in the SDO complement. 3 The record reflects that the former Manager, Distribution Operations retired from Agency employment effective February 17, 2015. 0120171208 6 Complainant alleged that several other similarly situated employees were treated more favorably during this period. First, Complainant claimed that her Hiring Coordinator duties were given to a younger white female. However, the evidence of record shows that once Complainant returned to her SDO position, those hiring duties were given to the Plant Manager’s Administrative Assistant (African American female, age 56). This individual was the same race and only a few years younger than Complainant, and was not similarly situated as she occupied a full-time administrative position rather than a floor supervisory one like Complainant. Complainant also named another SDO (Caucasian female, age 57), who has allowed to continue to perform attendance monitoring duties. We note however, that this comparator was also close in age to Complainant. While she was not the same race as Complainant, retaining this individual to regulate employee attendance does not undercut management’s explanation that it needed Complainant to return to her supervisory duties due to the documented shortage in supervisory personnel. The decision was made that the plant could no longer afford to have Complainant completely off the floor engaged in personnel duties. While Complainant may disagree with the decision, and the situation may not be optimal for her medical condition, neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination or retaliation. CONCLUSION We AFFIRM the Agency’s finding no discrimination concerning the instant complaint because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 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. 0120171208 7 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. 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 November 30, 2018 Date Copy with citationCopy as parenthetical citation