Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120120298 (E.E.O.C. Jun. 14, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120120298

Hearing No. 480-2010-00331X

Agency No. 1F-914-0018-09

DECISION

On October 20, 2011, Complainant filed an appeal from the Agency’s September 22, 2011
final order 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. The Commission deems the appeal
timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 an Electronic
Technician at the Agency’s Processing & Distribution Center in Santa Clarita, California.
This position required Complainant to fix malfunctioning mail processing machines and to
perform daily preventative maintenance to keep the malfunctions to a minimum. The machines
are large – with tiers, bins and stackers, and the technicians have to be agile enough to stand,
climb and twist while fixing and maintaining the machines.

In October 2008, Complainant submitted medical restrictions stating that due to impairments
affecting his lumbar spine and both hands and wrists, he was unable to lift or carry more than
five (5) pounds; grasp, drive, operate machinery, stand, twist, bend, walk, climb, reach above
his shoulder or stoop for more than two (2) hours a day; or do fine manipulation (including
keyboarding) or kneel for more than one (1) hour per day. He requested light duty, and in
November 2008, the Agency provided him with one hour of light duty work per day which he
performed.
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Complainant also requested reasonable accommodation in the form of a “cushioned rolling
office chair without arms.” The District Reasonable Accommodation Committee (DRAC) met
with Complainant and decided to see if the provision of such a chair would in fact enable
Complainant to perform the essential functions of his technician position. The DRAC provided
the chair and videotaped Complainant using it. The film revealed that Complainant could not
use the chair while performing his duties, sat in it only when he was out of breath and leaned
on the machines for support in a manner that created a safety risk. The DRAC thus concluded
that the chair was not an effective accommodation, nor was there one identified that could have
enabled Complainant to do the duties of his job. The DRAC then searched for a vacant funded
position and identified two, but again, Complainant’s restrictions prevented him from
performing the essential functions of those jobs, with or without reasonable accommodation.

On July 20, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability and in reprisal for prior protected EEO activity when
since April 2, 2009, his requests for reasonable accommodation were denied. At 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. The AJ assigned to the case ordered the
parties to supplement the record with evidence of Complainant’s restrictions, whether the
rolling chair was the only accommodation he requested, and the existence of vacant funded
positions. After the parties responded and over Complainant's objections, the AJ granted the
Agency’s motion for summary judgment and issued a decision on September 13, 2011.

In her thorough decision, the AJ assumed that Complainant’s restrictions rendered him an
individual with a disability within the meaning of the Rehabilitation Act. However, she
concluded that he was not a qualified individual with a disability because there was no
accommodation available that would enable him to perform the essential functions of his
technician’s position and because he did not identify a vacant funded position for which he was
qualified and to which he could have been reassigned.

With regard to his reprisal claim, the AJ concluded Complainant established a prima facie case
but failed to rebut the Agency’s explanation for denying his requests, namely that there was no
effective accommodation, including reassignment, available. The AJ addressed Complainant’s
arguments that other employees had been accommodated but of the two he identified, one did
not need any accommodation, and the other, a supervisor with a hearing impairment, had been
able to identify an effective accommodation. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
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"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.

Upon review of the record, we agree with the AJ that the facts material to this claim were not
in dispute and thus the grant of summary judgment was appropriate. Further, the AJ’s
conclusions of law are consistent with the Commission’s policies and precedent. The Agency
is not liable for failing to provide accommodation because Complainant did not establish
entitlement to coverage under the Rehabilitation Act. Moreover, there is simply no evidence
from which a reasonable fact finder could conclude that members of the DRAC retaliated
against Complainant. For these reasons, the Agency’s final order 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).
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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

June 14, 2013
Date