Darlene F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Mar 29, 2019

0120180350 (E.E.O.C. Mar. 29, 2019)

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

Darlene F.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120180350

Hearing Nos. 540-2015-00066X and 540-2015-00248X

Agency Nos. 4E-852-0069-14 and 4E-852-0047-15

DECISION

On October 31, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 27, 2017, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier
Associate at the Agency’s facility in Albuquerque, New Mexico.

The record indicates that Complainant was involved in an on-duty accident in 1995. As a result,
Complainant sustained permanent injuries. Due to her medical restrictions, Complainant had
been performing limited duty work and had been provided with accommodations.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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However, in June 2010, Complainant was sent home pursuant to the National Reassessment
Program as there was no work available within her limitations. Complainant had not worked at
the Agency since 2010.

On January 22, 2014, Complainant received a Notice of Proposed Termination due to her
absences issued by the station manager (Station Manager). Complainant filed a grievance over
the termination. Subsequently, Complainant was sent to the District Reasonable Accommodation
Committee (DRAC) to see if she could be returned to work. Complainant participated in
meetings with the DRAC. However, on July 9, 2014, Complainant was notified that the DRAC
concluded that Complainant could not be accommodated in her position. Complainant appealed
the conclusion. The appeal was denied.

During this time, Complainant contacted an EEO counselor alleging discrimination. On May 13,
2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on
the bases of race (Caucasian/Native American), national origin (Mexican-American), sex
(female), color (Brown), disability (back/hip/shoulder/arm injury), age (41), and reprisal for prior
protected EEO activity when:

1. On January 22, 2014, Complainant was sent a Notice of Termination of
Employment.

2. On September 24, 2014, Complainant was notified that her appeal for
reconsideration of the District Reasonable Accommodation Committee was
denied.

After she filed her complaint, on December 14, 2015, the Five Points Station Manager
(Manager) issued Complainant a Notice of Proposed Separation. The Notice stated that
Complainant had been absent from her position and unable to perform the duties of her position
since May 2010. She had been in Leave Without Pay status for more than 365 consecutive days.
As such, the Agency was required to administratively separate Complainant from the Agency.
On February 12, 2015, Complainant was issued a final decision upholding the proposed notice of
separation.

On April 13, 2015, Complainant filed a second EEO complaint alleging that the Agency
discriminated against her on the bases of race (Caucasian/Native American), national origin
(Mexican-American), sex (female), color (Brown), disability (back/hip/shoulder/arm injury), age
(41), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of
1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the
Rehabilitation Act of 1973 when:

3. On February 12, 2015, Complainant was issued a Letter of Decision upholding
the Proposed Notice of Separation issued on December 24, 2014.

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At the conclusion of the investigations, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
regarding both complaints. The complaints were consolidated by the AJ. The AJ assigned to the
case granted the Agency’s May 13, 2016 Motion for a Decision without a Hearing over the
objection filed by Complainant on June 15, 2016. The AJ determined that the complaint did not
warrant a hearing and issued a decision by summary judgment in favor of the Agency on
September 20, 2017.

The AJ found that Complainant was an individual with a disability. However, the AJ determined
that Complainant was not able to perform her position. Further, Complainant failed to show that
there was a position to which she could have been reassigned as a reasonable accommodation.
Therefore, the AJ concluded that the Agency’s termination action was appropriate and not issued
in violation of the Rehabilitation Act. Further, the AJ reviewed Complainant’s claim of disparate
treatment. The AJ held that the Agency provided legitimate, nondiscriminatory reasons for its
actions which Complainant failed to demonstrate were pretext for discrimination based on her
race, sex, national origin, color, age, and/or in retaliation for Complainant’s protected activity or
that of her husband.

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. Complainant argued that the matter should be found in her favor or, in the
alternative, that the matter be remanded on her claims of discrimination and/or reprisal. She
claimed that the AJ erred in issuing a decision without a hearing in that there were genuine issues
of material fact. She asserted that there were issues involving credibility as to whether she was
entitled to a reassignment to another position as Complainant could no longer perform the
essential functions of her Rural Carrier Associate position. Complainant argued that others were
accommodated and not separated. She also indicated that the AJ failed to address Complainant’s
claim of retaliation based on her and her husband’s prior protected EEO activities. As such,
Complainant requested that the Commission reverse the AJ’s decision and find that Complainant
was subjected to discrimination as alleged.

The Agency asked that the Commission affirm its adoption of the AJ’s decision finding no
discrimination without a hearing.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. 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). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure.
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The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate.

On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are
material facts at issue. However, in order to successfully oppose a decision by summary
judgment, a complainant must identify, with specificity, facts in dispute either within the record
or by producing further supporting evidence and must further establish that such facts are
material under applicable law. While Complainant has, in a very general sense, asserted that
facts are in dispute, she has failed to point with any specificity to particular evidence in the
investigative file or other evidence of record that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Denial of Reasonable Accommodation

Under the Commission's regulations, an agency is required to make reasonable accommodation
to the known physical and mental limitations of an otherwise qualified individual with a
disability unless the Agency can show that accommodation would cause an undue hardship. 29
C.F.R. § 1630.9. The AJ found that Complainant was an individual with a disability. We
discern no reason to disturb this finding.

We note that Complainant also must show that she is a “qualified” individual with a disability
within the meaning of 29 C.F.R. § 1630.2(m). The record indicated that Complainant could no
longer perform her Rural Carrier Associate position. We note that the discussion of “qualified”
does not end at complainant’s position. The term “qualified individual with a disability,” with
respect to employment, is defined as a disabled person who, with or without a reasonable
accommodation, can perform the essential functions of the position held or desired. 29 C.F.R.
§ 1630.2(m). The term “position” is not limited to the position held by the employee, but also
includes positions that the employee could have held as a result of reassignment. Therefore, in
determining whether an employee is “qualified,” an agency must look beyond the position which
the employee presently encumbers. Accordingly, reassignment should be considered in order to
determine if Complainant is otherwise qualified.
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EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act (Enforcement Guidance - Reasonable Accommodation), No.
915.002 (revised October 17, 2002); see also Interpretive Guidance on Title I of the Americans
With Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o).

As the individual requesting reassignment, Complainant has the evidentiary burden to show that
there were vacant funded positions during the relevant time period into which she could have
been reassigned. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140149 (Sept. 23,
2015) citing Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002). She
has not done so.

The Commission finds that substantial record evidence supports the AJ's finding that
Complainant is not a qualified individual with a disability since she was not able to perform the
essential functions of her position with or without accommodation. In addition, Complainant did
not identify a vacant funded position into which she could have been reassigned during this time,
and there is no evidence of one in the record. Accordingly, the Commission concurs with the
AJ's finding that the Agency did not deny Complainant reasonable accommodation in violation
of the Rehabilitation Act.

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether Complainant has shown by a preponderance of the
evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

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Upon review of the record, the Agency has articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, Complainant was issued the Notice of Termination on January 22,
2014, because Complainant had been off work for several years but was still on the rolls. The
Station Manager indicated that Complainant was removed because she was not working.
Following the grievance, Complainant was provided with the opportunity to address her position
with the DRAC, which found that there was no accommodation that would permit her to meet
the essential functions of her position. Complainant appealed the DRAC decision which was
denied. Following the DRAC denial, the Agency terminated Complainant from her position of
February 12, 2015. The Manager averred that he issued the decision based on Complainant’s
longer term assignment to a position for which she could not meet the duties.

Finding that the Agency provided legitimate, nondiscriminatory reasons for its actions, we turn
to Complainant to establish that the Agency’s reasons were pretext for discrimination.
Complainant argued that the Agency’s actions were in retaliation for her and her husband’s prior
EEO activity. She also asserted that others were provided with reasonable accommodations.
However, we find that Complainant’s bald assertions that the Agency’s actions constituted
unlawful discrimination and/or retaliation are not sufficient to show that the Agency’s reasons
were pretext. Therefore, we concur with the AJ’s decision finding that Complainant failed to
show that the Agency’s actions constituted unlawful discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final action implementing the AJ’s
decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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.

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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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 29, 2019
Date