Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 12, 2015

0120123417 (E.E.O.C. Feb. 12, 2015)

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

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120123417

Hearing No. 440-2011-00207X

Agency No. 4J-606-0178-09

DECISION
On August 31, 2012, Complainant filed an appeal from the Agency’s July 31, 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, as amended, 42 U.S.C.
§ 2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.
§ 791 et seq

. Our review is de novo. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a letter carrier at
the Roberto Clemente Station in Chicago, Illinois. On August 21, 2009, Complainant filed an
EEO complaint wherein she claimed that the Agency discriminated against her on the bases of
her national origin (Hispanic), sex (female), and disability when on April 29, 2009, she was
told there was no more work within her medical restrictions and sent home.1

The Agency dismissed the complaint on the grounds that all of the claims were subsumed in
the McConnell class action.2

1Complainant claimed race discrimination rather than national origin. However, the
Commission recognizes the basis of Hispanic as one of national origin, not race.
Complainant subsequently filed an appeal with the Commission.

2In McConnell, et al. v. United States Postal Service, EEOC Appeal No. 0720080054 (January
14, 2010), we reversed the Agency’s final order rejecting the AJ’s certification of the class.
0120123417

2
In Complainant v. United States Postal Service

, EEOC Appeal No. 0120100179 (April 15,
2011), we affirmed the Agency’s decision to subsume the claim of disability discrimination.
However, we reversed the decision to subsume the claims of national origin and sex
discrimination. These claims were remanded for further processing.
At the conclusion of the investigation of the remanded claims, 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). Complainant timely requested a hearing.
When Complainant did not object, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision on July 23, 2012.

The AJ found that no discrimination occurred. The AJ noted that the letter carrier position
requires arduous exertion involving prolonged standing, walking, bending and reaching, and
may involve handling heavy containers of mail weighing up to the allowable maximum mailing
weight. Complainant had been a limited duty letter carrier prior to April 27, 2009. According
to the AJ, Complainant’s work restrictions included avoiding driving, pulling/pushing and
reaching above her shoulder. Complainant also was limited to thirty minutes continuous of
sitting, standing and walking, and intermittent of 15-20 pounds of lifting/carrying, thirty
minutes of climbing, and one hour of bending/stooping and twisting.

The AJ stated that Complainant was instructed to file a CA-7 form and submit it to the injury
compensation office. Complainant has received OWCP payments since April 29, 2009. The
AJ observed that Complainant’s physician determined her to be totally disabled for work from
at least July 15, 2010, through at least June 30, 2011. Complainant’s physician subsequently
determined as of June 20, 2011, that Complainant was permanently and totally disabled for
work.

The AJ noted that Complainant cited three comparisons who received work within their
restrictions. One comparison was an African-American male letter carrier who does not have
any pushing/pulling or driving restrictions. This comparison can lift 35 pounds continuously
and 50 pounds intermittently. The comparison is able to walk in twenty-minute intervals
throughout the eight-hour day. The AJ stated that this comparison was able to work as a letter
carrier as he was able to case routes, perform some express and priority delivery, and perform
building delivery and collections.

The class has been certified as all permanent rehabilitation employees and limited duty
employees at the Agency who have been subjected to the National Reassessment Program
(NRP) from May 5, 2006, to the present, allegedly in violation of the Rehabilitation Act. The
AJ defined the McConnell claims into the following broader complaint: (1) The NRP fails to
provide a reasonable accommodation (including allegations that the NRP “targets” disabled
employees, fails to include an interactive process, and improperly withdraws existing
accommodation); (2) The NRP creates a hostile work environment; (3) The NRP wrongfully
discloses medical information; and (4) The NRP has an adverse impact on disabled employees.

0120123417

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A second comparison was an African-American male letter carrier who only had restrictions
on the amount of weight he could manipulate. He did not have any restrictions on sitting,
standing, walking, or driving. This comparison was able to work in the letter carrier operation
as he was able to carry mail on one or more routes. A third comparison was an African-
American female letter carrier. She was able to perform work in the letter carrier operation as
she was able to carry mail on one or more routes.

The AJ found that Complainant failed to establish a prima facie case of national origin or sex
discrimination as she did not identify a similarly situated employee who was treated more
favorably. According to the AJ, the three comparisons were not similarly situated to
Complainant as they were significantly less restricted and could perform letter carrier work.

The AJ found that assuming arguendo Complainant established a prima facie case of
discrimination, the Agency provided a legitimate, nondiscriminatory explanation for sending
Complainant home, namely that Complainant’s work restrictions made it impossible for her to
perform most of her job duties. The AJ found that Complainant did not offer evidence that the
Agency’s evidence was a pretext for national origin or sex discrimination. 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.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was unable to file a Response to the Agency’s
Motion for Summary Judgment because she could not afford an attorney.

In response, the Agency asserts that the employees that Complainant believed were treated
more favorably were not similarly situated as they could perform letter carrier duties despite
their restrictions, which Complainant could not. The Agency states that due to the nature and
extent of Complainant’s work restrictions, there was no letter carrier work available for
Complainant within her medical restrictions beginning on or about April 29, 2009. The
Agency maintains that is the reason she was sent home and has since been receiving OWCP
benefits.

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant has set forth a prima facie case of national origin
and sex discrimination. The Agency explained that Complainant was informed that there was
no longer any work available that she could do within her physical restrictions and that
therefore she was sent home. We find that the Agency articulated a legitimate,
nondiscriminatory reason for the action it took.

Complainant stated that for two days she had an assignment where she was performing clerical
duties. According to Complainant, she was informed on April 29, 2009, that the work she was
0120123417

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performing was determined to be Clerk work and there was no work available to her within
her physical restrictions. Complainant claimed that she believed management could have
assigned her duties in paperwork, answering phones, supervising, or mail sorting. However,
Complainant has not presented evidence that her national origin or sex were factors in the
Agency’s decision not to assign her further work to perform. The comparisons referenced by
Complainant were able to perform some of their letter carrier duties and Complainant was no
longer able to do so. We find that Complainant has not refuted the Agency’s explanation and
has not shown that she received disparate treatment attributable to her sex or national origin.

CONCLUSION
The Agency’s determination that no discrimination occurred is AFFIRMED.

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).
0120123417

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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

Date
February 12, 2015