Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Jul 30, 2015

01-2012-2166-0500 (E.E.O.C. Jul. 30, 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
(Southwest Area),
Agency.

Appeal No. 0120122166

Agency No. 4G-752-0262-11

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
February 16, 2012 final Agency decision (FAD) concerning her 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS in
part and REVERSES in part the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full-Time City
Carrier at the Agency’s Station A in Dallas, Texas. Complainant suffers from several medical
conditions as a result of work-related injuries, including Complex Regional Pain Syndrome
(CRPS) of the upper and lower extremities. Complainant explained this is a chronic
progressive neurological condition that affects the sympathetic nervous system and causes
chronic pain, body aches, stiffness, swelling of feet, and tightness of joints (muscle spasms),
with occasional flare-ups. According to Complainant’s doctors, Complainant’s pain initially
began in the lower extremities, but progressed to CRPS of the upper extremities. Complainant
had surgery for Tarsal Tunnel Syndrome in 2005 and 2006. Further, Complainant suffers
from Plantar fasciitis and Lower Limb Bilateral, and she later developed Carpal Tunnel
Syndrome.

Prior to June 2010, the Agency used Complainant as a 204B supervisor; however, the Agency
implemented the National Reassessment Process (NRP) and Complainant began working one
hour a day as a City Carrier. Complainant underwent hand surgery for Carpal Tunnel
Syndrome on August 26, 2010. On August 31, 2010, Complainant’s doctor indicated that
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Complainant had reached maximum medical as to her feet and ankles, and that she would be
able to return to work with restrictions after recovering from her hand surgery. On November
30, 2010, Complainant underwent a Functional Capacity Evaluation. The evaluation
concluded that Complainant could lift no more than 32 pounds to her waist and 22 pounds
shoulder-height and that she could “maintain prolong positions of 30 minutes for sitting,
standing, and walking. In a Form CA-17 Duty Status Report dated December 9, 2010,
Complainant’s doctor indicated that Complainant’s restrictions included no lifting more than 32
pounds six to eight hours a day and “30 minutes activity intermittently with breaks.”

As a result of Complainant’s medical conditions, Agency management offered Complainant
limited duty assignments on November 16, 2010 and April 1, 2011. Complainant’s duties
would include casing an assigned route, pulling down a route and loading it on to vehicle, and
delivering mail on an assigned route and other routes. The November 2011 offer indicated that
Complainant’s physical restrictions were lifting 25 to 30 pounds one to eight hours, one to
seven hours of standing/walking to case and deliver mail, and one to two hours of driving
Postal vehicles. Complainant refused the first offer on December 1, 2010, reasoning that the
offered assignment violated her medical restrictions, including the requirement that she sit,
stand, and walk intermittently no more than 30 minutes from the November 30, 2010
Functional Capacity Evaluation.

On April 1, 2011, the Agency offered Complainant a modified job assignment identical to the
November 2010 job offer. In an April 19, 2011 letter, a Senior Claims Examiner with the
Office of Workers’ Compensation Programs (OWCP) informed Complainant that the April 1,
2011 job offer was suitable and in accordance with her medical restrictions, the Functional
Capacity Evaluation, and the December 2010 CA-17. On May 31, 2011, Complainant was
informed by the Senior Claims Examiner that her claim for wage benefits would be terminated
June 5, 2011, based on Complainant’s refusal to work.

In an April 27, 2011 CA-17, Complainant’s restrictions were listed as no lifting more than 30
pounds, no continuous sitting more than 30 minutes, no more than six hours of walking, and
no work outside in below 30 degrees and above 90 degrees. The CA-17 noted that “sitting for
prolonged periods of time causes pain – she may sit 30 minutes at a time. No prolonged
continuous sitting or walking.” Complainant subsequently accepted the April 2011 modified
assignment “under protest” on June 4, 2011.

On or around August 30, 2011, Complainant submitted a request for reconsideration to the
OWCP. On September 14, 2011, the OWCP vacated the May 31, 2011 decision regarding her
wage benefits claim. The OWCP explained that the April 1, 2011 modified assignment offer
was not valid because it failed to specifically include Complainant’s restriction that she sit 30
minutes intermittently with no prolonged continuous sitting or walking.

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On September 14, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of disability and in reprisal for prior protected EEO
activity when between June 4, 2011 and July 2, 2011, she was not accommodated.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially determined that Complainant was a qualified individual with a
disability as she could perform the essential functions of the Letter Carrier position with
reasonable accommodation. The Agency found that management had attempted to
accommodate Complainant on several occasions in 2010 and 2011. Management had most
recently accommodated Complainant by providing her a November 17, 2010 (which was re-
offered on April 1, 2011) modified assignment which was determined by OWCP to be within
her restrictions. Complainant refused the assignment until June 2011. As a result, the Agency
determined that Complainant had not been denied accommodation.

With respect to Complainant’s reprisal claim, the Agency determined that, as discussed above,
management articulated legitimate, nondiscriminatory reasons for its actions. In particular, the
Customer Services Manager (M1) avowed that Complainant's medical documentation indicated
that she could deliver mail as a City Letter Carrier, and she later accepted a modified job
offer. M1 asserted that Complainant did not request any accommodation beyond the modified
job assignment that she accepted, as her lifting restriction did not affect her ability to perform
the duties of a City Carrier position. Further, M1 noted that Complainant had medical
documentation indicating she could case and carry mail. The Health and Resource
Management Specialist (HRMS) confirmed that Complainant was offered a job assignment
based on her medical restrictions. HRMS noted that the OWCP ruled that the job offer was a
valid offer, and that Complainant should return to work.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

1 On October 6, 2011, the Agency dismissed an additional claim pursuant to 29 C.F.R.
§ 1614.107(a)(1) for failure to state a claim. Complainant failed to raise any challenges to the
dismissal on appeal; therefore, the Commission will not address it herein. Additionally, on
November 25, 2011, the Agency dismissed the complaint for failure to cooperate reasoning
that Complainant failed to submit an affidavit in support of her complaint. On December 5,
2011, the Agency received Complainant’s affidavit and rescinded the dismissal.
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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency should have provided her a 204B supervisor
position and management retaliated against her by not placing her in one. Further,
Complainant claims that management attempted to force her to do a job that violated her
temperature and break restrictions Complainant further claims that she did not refuse the job
offer; rather, she did not understand it because it did not accommodate her restrictions.
Complainant notes that the OWCP later found that the job offer was not suitable. Accordingly,
Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment/Reprisal

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that Complainant failed to present evidence to rebut
the Agency's legitimate, nondiscriminatory reasons for its actions. Specifically, the Customer
Services Manager (M1) affirmed that Complainant requested and was granted a modified job
offer in accordance with her medical documentation. ROI, at 159. M1 noted that
Complainant had lifting restrictions not to exceed 32 pounds based on her December 2010
medical documentation. Id. at 158. M1 added that Complainant used sick and annual leave
and was a no-call/no-show during the period of time at issue, and that Complainant has not
returned to work since July 2011. Id. at 157, 160. The Health and Resource Management
Specialist stated that the Senior Claims Examiner at the OWCP ruled that the offered modified
job assignment was valid, within Complainant’s medical restrictions, and advised Complainant
to return to work. Id. at 163.

The Commission finds no evidence that Complainant's protected classes were a factor in any of
the Agency's actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of discriminatory or retaliatory animus.
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Complainant failed to carry this burden. As a result, the Commission finds that Complainant
has not established that she was subjected to discrimination or reprisal as alleged.

Denial of Reasonable Accommodation

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. Part 1630. In order to establish that Complainant 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 a reasonable accommodation.
See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement
Guidance”). Under the Commission's regulations, an Agency is required to make reasonable
accommodation to the known physical and mental limitations of a qualified individual with a
disability unless the Agency can show that accommodation would cause an undue hardship.
See 29 C.F.R. §§ 1630.2 (o) and (p). The Agency does not dispute that Complainant is a
qualified individual with a disability under the Rehabilitation Act.

The record reveals that in November and December 2010, Complainant’s restrictions included
no lifting more than 32 pounds six to eight hours a day and “30 minutes of activity
intermittently with breaks.” ROI, Post-Investigation Documents; ROI, Ex. 5. In November
2010, the Agency offered Complainant a limited duty modified job assignment in accordance
with her lifting restrictions; however, the offer failed to address Complainant’s need for breaks
in activity. ROI, Ex. 6. Complainant refused the offer because it would violate her need to
take breaks. There is no evidence that the Agency offered Complainant a new modified
assignment in accordance with her medical documentation or revised the offered assignment.
The Agency offered Complainant the same modified job assignment in April 2011, without any
modifications to accommodate Complainant’s need to take breaks. ROI, Ex. 5. Complainant
signed and accepted the job offer under protest as it still failed to fully address her medical
restrictions. Complainant submitted an updated CA-17 dated April 27, 2011, outlining further
restrictions including weather restrictions and noting again that “sitting prolonged periods of
time causes pain – she may sit 30 minutes at time…[n]o prolonged continuous sitting or
walking.” The Agency did not offer Complainant a new assignment in accordance with those
restrictions.

The Agency apparently relied upon the OWCP’s determination that the November 2010 and
April 2011 job offers were suitable. The Commission reminds the Agency that its duty to
provide reasonable accommodation is ongoing, and the Agency cannot use an OWCP decision
as reason for not providing reasonable accommodation. Germain v. U.S. Postal Serv., EEOC
Appeal No. 0120088777 (Dec. 3, 2008). An OWCP decision indicating that a position may be
suitable for an employee does not relieve the Agency of its duty to provide reasonable
accommodation. In the instant case, the OWCP ultimately found that the modified assignments
offered were not suitable as they failed to address several of Complainant’s documented
medical restrictions. The Agency has proffered no evidence that accommodating
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Complainant’s restrictions (i.e., intermittent breaks between activities and weather restrictions)
would pose an undue hardship. Accordingly, the Commission finds that the Agency violated
the Rehabilitation Act when it failed to offer Complainant reasonable accommodation in
accordance with her medical restrictions.2

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, the Commission finds
that Complainant has not established that the Agency's legitimate, nondiscriminatory reasons
were pretext for discrimination or reprisal, but that she has established that she was denied
reasonable accommodation for her disability. Accordingly, the Commission AFFIRMS the
FAD with respect to disparate treatment, REVERSES the FAD with regard to reasonable
accommodation, and REMANDS the matter for further processing in accordance with the
ORDER below.

ORDER

The Agency is ORDERED to take the following remedial action within 120 calendar days,
unless otherwise stated:

1. The Agency shall conduct a supplemental investigation to determine whether, and what,
reasonable accommodation Complainant currently requires. The Agency shall solicit
updated medical information from Complainant as may be needed for an informed
determination. Complainant shall cooperate in this matter.

2. The Agency shall restore any leave used by Complainant due to the Agency's failure to
provide her with a reasonable accommodation as of June 4, 2011.

3. Within fifteen (15) calendar days of the date this decision becomes final, the Agency
shall give Complainant a notice of her right to submit objective evidence (pursuant to
the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan.
5, 1993)) in support of her claim for compensatory damages within forty-five (45)
calendar days of the date Complainant receives the Agency's notice. The Agency shall
complete the investigation on the claim for compensatory damages within forty-five
(45) calendar days of the date the Agency receives Complainant's claim for

2 To the extent that Complainant believes the Agency management should have used her as a
204B supervisor as it had in the past, the Commission notes that Complainant is not entitled to
the accommodation of her choice, and an employer may choose among reasonable
accommodations as long as the chosen accommodation is effective. See EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act (Guidance), No. 915.002, Question 9 (rev. October 17, 2002).
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compensatory damages. Thereafter, the Agency shall process the claim in accordance
with 29 C.F.R § 1614.110.

4. The Agency shall provide training to the responsible management officials identified
regarding their responsibilities with respect to eliminating discrimination in the federal
workplace. The training must emphasize the Agency's obligations under Section 501 of
the Rehabilitation Act and in particular, its duties regarding reasonable accommodation.

5. The Agency shall consider taking appropriate disciplinary action against the responsible
management officials. The Commission does not consider training to be disciplinary
action. The Agency shall report its decision to the Compliance Officer. If the Agency
decides to take disciplinary' action, it shall identify the action taken. If the Agency
decides not to take disciplinary action, it shall set forth the reason(s) for its decision not
to impose discipline. If any of the responsible management officials have left the
Agency’s employ, the Agency shall furnish documentation of their departure date(s).

POSTING ORDER (G0914)

The Agency is ordered to post at its Stockton, Georgia facility copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall
be posted both in hard copy and electronic format by the Agency within 30 calendar days of
the date this decision becomes final, and shall remain posted for 60 consecutive days, in
conspicuous places, including all places where notices to employees are customarily posted.
The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or
covered by any other material. The original signed notice is to be submitted to the Compliance
Officer at the address cited in the paragraph entitled "Implementation of the Commission's
Decision," within 10 calendar days of the expiration of the posting period.

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)
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(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 (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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. If you file a civil action, you must name as the defendant in the complaint the
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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

July 30, 2015
Date