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

Equal Employment Opportunity Commission

Jun 27, 2013

0120113639 (E.E.O.C. Jun. 27, 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
(Southwest Area),
Agency.

Appeal No. 0120113639

Hearing No. 450-2010-00113X

Agency Nos. 1G-761-0046-09 & 1G-761-0035-10

DECISION

On July 14, 2011, Complainant filed an appeal from the Agency’s June 16, 2011 final order
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 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 Mail Processing
Clerk at the Agency’s Processing & Distribution Center in Fort Worth, Texas. Complainant
has been working in permanent light duty status since 2005. On July 24, 2009, Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the bases of
disability and in reprisal for prior protected EEO activity when from April 9, 2009, and
ongoing:

1. Complainant has been denied schedule changes that permit her to begin her tour at
9:30 p.m. and instead has been forced to use Annual Leave or Leave Without Pay
when she needs to end her tour at 6:00 a.m.;
2. Complainant has not been allowed to work in a regular or modified letter case with
a chair that has back support;
3. Complainant has had her light duty job duties changed;
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4. On various dates Complainant has been sent to the stand-by room when work has
been available; and
5. On various dates Complainant has been placed off the clock based on no work
available because she cannot work the prep belt.

Complainant filed a second complaint alleging discrimination on the same bases when:

1. On an unspecified date, Complainant was denied a schedule change request to work
three days per week; and
2. Since approximately November of 2009, Complainant was sent home on various
dates because no work was available.

At the conclusion of the investigations, the Agency provided Complainant with a copy of the
reports of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ consolidated the
complaints and granted the Agency’s motion for summary judgment in part and issued a
decision on May 16, 2011.1

In his decision, the AJ found the following:

Complainant's core assertion in this case is that the Agency has not
accommodated her request for light duty work. The agency admits this and
asserts that it has no legal obligation to do so under the EEOC statutes. From
2002 until April 2009, Complainant was paid to perform light duty work. She
wanted to continue this arrangement indefinitely. It is well established that light
duty is not a reasonable accommodation under the Rehabilitation Act. The
Rehabilitation Act does not require the creation of a new job tailored to the
medical capabilities of a specific individual employee, nor does it require any
reduction in performance standards. However, the Rehabilitation Act does
encourage (but not require) employers to provide accommodations which go
beyond what is required by statute. This is precisely what the Agency did for
Complainant from 2002 to April 2009. A decline in the Agency’s business
fortunes in recent years contributed to the re-examination of this practice.

Complainant mostly worked a modified case from 2005 to April 2009.
Complainant has not made an allegation that the modified case is as productive
as the regular, non-modified case. Complainant's job duties were changed in
April 2009 because it was discovered she was working in an area reserved for

1 The AJ determined that a hearing was required for a third claim raised in the second
complaint. He assigned that claim to a different hearing number (EEOC Case No. 450-2011-
00156X); subsequently held a hearing; and issued a decision in Complainant’s favor. Neither
the Agency not Complainant filed an appeal of the Agency’s final action concerning EEOC
Case No. 450-2011-00156X.
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limited duty employees, and were changed again in July 2009 because her
employer no longer wished to pay her a full time wage for work it considered
less than fully productive. The closer scrutiny she experienced in April was
closely connected with, and in anticipation of, the policy which led, in July
2009, to the determination that there was insufficient productive work available
for her. The modified cases were eliminated nationwide, and were removed
from her facility in July 2009 in accordance with the Agency's view that they
were less than fully productive. No proffered evidence in this record would
indicate otherwise.

Complainant's other arguments are mostly variations on the same theme. Her
arguments that other medically impaired employees, as comparisons, were
sporadically allowed to work at various jobs from April to July 2009 need not
be individually addressed. The Agency was in the midst of a major business and
physical reorganization at this time. An inference of discrimination could not be
made for such a short period of alleged better treatment. Furthermore,
Complainant herself was provided either work or full time pay for almost the
entire period from April to July 2009. The brief period of time Complainant
was sent to the standby room was reasonable considering the agency was in the
midst of a major reorganization, and she was fully paid for that time.

Complainant could not productively work a non-modified case with a chair as
this would not have permitted her to work the entire case, but only a portion of
it. If the modified case, which was designed to be worked with a chair, was
deemed less than fully productive, then the non-modified case, which was
designed to be used from a standing or rest-bar position, would necessarily be
even less productive.

Complainant is not similarly situated to limited duty employees, since she was
not injured on the job, and thus the employer has statutory and contractual
obligations to limited duty employees that are not owed to complainant. The
agency's policy to reserve the PARS area and the modified cases to limited duty
employees does not raise an inference of discrimination.

Complainant was not put off the clock because she could not work the prep belt,
but rather because there was no fully productive work available within her
medical restrictions. Some light duty employees during the transitional period
were allowed to work the prep belt temporarily, including Complainant, but she
declined the assignment. If she had accepted, the assignment would have soon
ended anyway since the prep belt was removed from the facility due to it being
considered less than fully productive.

For similar reasons, Complainant's allegations of retaliation are unpersuasive.
The core Agency policy to move away from assignments considered less than
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fully productive was implemented prior to Complainant seeking counseling.
That some of the transitional events occurred after the redress meeting does not
raise an inference of retaliation, since the core policy preceded the redress.
Complainant had no prior EEO activity except in the remote past.

Concerning the denial of a schedule change from 6:30 a.m. end tour to 6:00
a.m. end tour, Complainant has not asserted facts which, if proven at hearing,
would constitute a prima facie case. Specifically, she has presented no
comparison employees who were approved for what, essentially, was an
indefinite schedule change. Far from being treated less favorably, the evidence
shows Complainant was actually treated more favorably in that she was
generously given a schedule change for an unusually lengthy period of time.
Complainant has not raised a material question of fact. Indefinite schedule
changes conflicted with the union contract and potentially expose the Agency to
grievances. There was nothing improper in the manager putting a stop to this
practice once she found out about it.

Concerning the denial of the request to work part-time three days per week,
Complainant has again not raised a material question of fact. This would
conflict with national policy and the union contract, and potentially expose the
agency to grievances. To be sure, Complainant was put into a difficult situation
in that she was not getting enough daily work to justify the expense of going
into work every day. Since the re-evaluation of light duty assignments occurred
on a national basis, presumably other light duty employees around the country
faced a similar dilemma. It would seem to be appropriate for the union to
bargain over the issue, or for a modification to the contract. Discrimination
statutes cannot deal with that situation. Complainant cannot establish a prima
facie case. She has been treated the same as other light duty employees and is
not similarly situated as limited duty employees or employees who are not
medically impaired. She has identified no comparison employees who were full-
time but were permitted to have a part-time schedule. No inference of reprisal
would be appropriate since the Agency's action was consistent with its national
policy. Judgment is in favor of the agency.

AJ Decision at 10-12. 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.
This appeal followed but without a statement or brief in support of it.

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.
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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 discern no basis to disturb the AJ’s grant of summary
judgment. Even assuming arguendo that Complainant is an individual with a disability within
the meaning of the Rehabilitation Act, the AJ correctly concluded that the Rehabilitation Act
does not require the Agency to create a job or maintain an employee in a job consisting of
“light duty” or make work tasks. These are not forms of reasonable accommodation within
the meaning of the Rehabilitation Act. Complainant was sent home when there was no
productive work available for her to perform. We find that Complainant did not identify any
accommodations that would have enabled her to perform the essential functions of her bid
position, nor did she identify a vacant, funded position for which she was qualified and to
which she could have been reassigned. Under these circumstances, the Agency is not liable for
denying reasonable accommodation.

We further agree with the AJ that the Agency provided legitimate and non-discriminatory
reasons for its actions with regard to her tour ending time and the denial of part-time work.
No reasonable fact finder could conclude that these decisions were motivated by unlawful
animus under the circumstances of this case. We find no evidence of discrimination. 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.
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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

June 27, 2013
Date