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

Equal Employment Opportunity Commission

Sep 4, 2013

0120113465 (E.E.O.C. Sep. 4, 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. 0120113465

Hearing No. 550-2011-00037X

Agency No. 4F-945-0149-10

DECISION

On June 23, 2011, Complainant filed an appeal from the Agency’s May 26, 2011 final order
concerning her equal employment opportunity (EEO) complaint alleging 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. 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 a light duty letter
carrier at the Agency’s post office in Concord, California. She had been working in modified
status since 1994. By 2008, her restrictions had become more severe, and in 2009, she was
offered new duties but not guaranteed eight hours of work per day. Complainant regularly did
not receive eight hours of work because the elimination of seventeen routes in February 2009,
converted seventeen regular full-time carriers to the status of unassigned regulars with work
guarantees requiring that they be given eight hours of work per day ahead of light-duty
carriers.

In May 2009, she filed a Form CA-2, Notice of Occupational Disease and Claim for
Compensation. On this notice, Complainant claimed to have been performing work that she
allegedly had not been performing for at least ten years. Management controverted the claim
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and took the position that she provided false information on the form with the intent to commit
fraud. She subsequently received a Notice of Removal which became effective in December
2009.

On November 9, 2009, an arbitration hearing was held concerning Complainant’s claims that
management violated the National Agreement when the Agency failed to assign her available
light duty work within her capabilities on or after February 19, 2009, and failed to provide her
with written notification on those occasions when she did not receive eight hours of light duty
work per day. The union, on behalf of Complainant, prevailed, and the arbitrator ordered that
she be made whole under the terms of the National Agreement. Complainant also filed a
grievance on her removal, and in August 23, 2010, management and the union signed a pre-
arbitration settlement in which the Notice of Removal issued on July 13, 2009, and effective
December 29, 2009, was rescinded. Complainant was returned to duty and made whole from
December 29, 2009.

On May 5, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Asian), national origin (Filipino), sex (female), disability, age
(54), and in reprisal for prior protected EEO activity when:

1. She was issued a notice of removal dated July 13, 2009, which was effective
December 29, 2009; and
2. From February 19, 2009 to December 29, 2009, she was sent home 143 times for
lack of work.

At the conclusion of the investigation, 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. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for summary judgment
and issued a decision on May 20, 2011. 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. From that order, comes this appeal.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing 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 "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 found that even assuming Complainant was an individual with a disability within the
meaning of the Rehabilitation Act, she failed to prove she was a qualified individual with a
disability because she could not perform the essential functions of her letter carrier position or
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a vacant funded position, with or without reasonable accommodation. The AJ noted that the
Agency is not required to create a conglomeration of medically acceptable tasks for disabled
employees when there are no actual vacant positions into which they can be placed. The AJ
further found that Complainant was not able to establish a prima facie case of race, national
origin, sex, age or reprisal discrimination with respect to being sent home early and the
removal action. Even assuming she did, the AJ found that Complainant did not rebut the
Agency’s explanations with any evidence of pretext.

Upon review of the record, we agree with the AJ that summary judgment was appropriate
given that no material facts are in dispute. Contrary to Complainant’s argument on appeal, a
dispute as to whether she was a limited or light duty employee is not genuine. Regardless of
her status, Complainant still bears the burden to prove she is a qualified individual with a
disability within the meaning of the Rehabilitation Act. In closing, the AJ noted:

Complainant successfully pursued related claims in both the grievance and
OWCP processes and received much of the relief she seeks in this EEOC
administrative forum. These alternative venues, in light of the absence of any
substantive evidence of discrimination or reprisal, were clearly the more
appropriate avenues for relief.

AJ Decision at 26. We agree and discern no basis to disturb the AJ’s decision. Accordingly,
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
0120113465

4
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

(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

September 4, 2013
Date