Elly C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 5, 20160120150165 (E.E.O.C. Oct. 5, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elly C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120150165 Hearing No. 490-2013-00109X Agency No. 4C-370-0174-12 DECISION The Commission accepts Complainant’s appeal from the Agency’s September 18, 2014 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. and 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 the final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transitional Employee (TE) Letter Carrier at the Agency’s Mendenhall Station in Memphis, Tennessee. On October 4, 2011, Complainant was hired to a 360-day term that was to expire on September 27, 2011. Complainant suffered two on-the-job injuries during her employment with the Agency. In October 2011, Complainant’s doctor limited Complainant to 30 minutes of walking every two hours. In January 2012, Complainant’s doctor indicated that Complainant would be unable to perform the duties of her position for eight weeks. By February 2012, Complainant was limited to 30 minutes of standing every two hours. 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. 0120150165 2 On May 31, 2012, Complainant was given a modified assignment which included duties of casing routes in station for one to two hours; assisting delivery on street for one hour; and use of the resource room for two hours. On September 5, 2012, Complainant’s doctor restricted Complainant to 30 minutes of standing every two hours; no driving; no pushing or pulling; no lifting or squatting; and no kneeling. On September 27, 2012, Complainant’s supervisor informed Complainant that her TE appointment would not be renewed. On December 11, 2012, 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 on September 27, 2012, her Transitional Employee (TE) Letter Carrier contract was not renewed. 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). Complainant timely requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the Agency and issued a decision on September 12, 2014. In the decision, the AJ initially assumed arguendo that Complainant established a prima facie case of discrimination and reprisal and found that the Agency articulated legitimate, nondiscriminatory reasons for its action. Specifically, management explained that Complainant’s TE appointment was not renewed because she was no longer able to perform the essential functions of the TE City Carrier position. During her term as a TE City Carrier, Complainant was placed under work restrictions by her doctor. On May 31, 2012, Complainant was given a modified light duty assignment because of her work restrictions. In essence, Complainant no longer performed her City Carrier duties and was assigned office based “clerk work.” The Agency decided not to renew Complainant’s appointment as she was no longer able to perform the essential functions of a City Carrier, i.e., deliver and collect mail. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in granting summary judgment. Complainant argues that the Agency gave her clerk duties which were not conducive to her healing. Complainant claims that she could perform the duties of her position until her supervisor decided she did not want to assist her with her deliveries. Complainant claims that management provided inconsistent reasons for her termination. Accordingly, Complainant requests that the Commission reverse the final order. 0120150165 3 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 “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. Disparate Treatment 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, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Commission finds that Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In particular, the Operations Manager (M1) affirmed that she decided to not renew Complainant’s TE appointment because she was unable to perform the duties of the position and there was no work available within her restrictions. ROI, at 182. The duties of a City Carrier include five hours of standing, six hours of driving, one hour of pushing/pulling, four hours of kneeling, four hours of bending/stooping, and lifting infrequently. Id. at 174. By September 2012, Complainant had restrictions of no standing for more than 30 minutes every two hours; no driving; and no pushing, pulling, lifting, squatting, or kneeling. Id. at 128. M1 stated that management provided Complainant office-based tasks such as answering phones until the end of her appointment, which were not in the job description of her position. Id. at 182. As she was unable to perform the duties of the City Carrier position and there was no available work within her restrictions, management determined that Complainant’s TE appointment would not be renewed. Id. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. 0120150165 4 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. 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. Finally, to the extent that Complainant claims that the Agency failed to reasonably accommodate her, the Commission notes that the Agency is required to provide reasonable accommodation for the known physical or mental limitations of qualified individuals with disabilities, absent undue hardship to its operations. The Commission further notes that an employer is not required to create a job for a disabled employee or provide “make work.” As discussed above Complainant could not perform her primary City Carrier duties within her restrictions, and there was no work available to assign to her within her restrictions. The Commission finds that Complainant failed to prove that there was an accommodation available which would have enabled her to perform the essential functions of her position or that there was a vacant, funded position for which she was qualified and to which she could have been assigned. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. 0120150165 5 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 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. The requests 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 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. Such requests do not alter the 0120150165 6 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 October 5, 2016 Date Copy with citationCopy as parenthetical citation