0120173046
08-21-2018
Judi S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Judi S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120173046
Hearing No. 531-2015-00139X
Agency No. 1K-206-0011-13
DECISION
On September 19, 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 August 17, 2017 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
Introduction
Complainant began employment with the Agency effective September 29, 2007. Most pertinently, she was employed as a Mail Processing Clerk in Automation-Tour I at an Agency Processing and Distribution Center in Washington, DC. In 2010, due to an October 2008 on-the-job injury, Complainant began receiving benefits and was on leave under the Office of Workers' Compensation Programs (OWCP). In 2012, OWCP proposed reducing Complainant's benefits pursuant to its vocational rehabilitation program and an update to her work restrictions. In 2013, Complainant applied for a higher-level position - Lead Mail Processing Clerk, Level PS-07, Main Distribution, Tour III - with the Agency, and was the senior bidder for the job. When Complainant reported to work on July 29, 2013, the Manager of Distribution Operations (S1) presented her with an Offer of Modified Assignment for the Level 07 position. Complainant worked 24 hours between July 29 and August 2, 2013, and was on administrative leave reported under "injury on duty" between August 3 and August 14, 2013. Complainant returned to work as a part-time Mail Processing Clerk on Tour 1 on August 15, 2013.
On April 17, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on disability (Right Shoulder Impingement/Tendonitis/Bursitis, Neck and Shoulder Sprain, Left Shoulder Tendonitis, and Depression) when, about August 7, 2013, the Agency denied and/or removed Complainant from the higher-level bid job (Position #70707865). The Agency accepted Complainant's claim for investigation.
Investigation
Complainant's Statement
During the EEO investigation, Complainant stated that the Agency denied her accommodation which would have allowed her to overcome her injury. Complainant stated that management gave her an invalid modified assignment for her Lead Clerk position. Complainant stated that she was not given an opportunity to appear before the Agency's District Reasonable Accommodation Committee. Complainant stated that the Agency did not provide her accommodation in her Level 07 Lead Clerk position, but returned her to a Level 06 Clerk position instead. Complainant stated that her paperwork was completed incorrectly and the Agency withheld information on purpose. Complainant stated that the Agency wanted her to process mail in the Lead Clerk position, but she should have been performing supervisory duties only. Complainant added that supervisors are usually not required to process mail. Complainant stated that the Agency did not provide an accommodation for the Lead Clerk position on Tour III, but provided an accommodation when she returned to her original Clerk, Level 06, Tour I position. Complainant stated that she lost upward mobility due to the Agency's action.
Agency's Statement
The Manager of Distribution Operations, S1, stated that Complainant's medical condition prevented her from performing her bid job because she could not have repetitive motion or lift anything above her shoulder. S1 stated that the Agency awarded Complainant a Lead Mail Processing, Level 07, position but she was unable to perform portions of the job due to her medical restrictions. S1 stated that information on the Duty Status Report (CA-17) was used to remove Complainant from bid position #70707865 because processing mail on a Delivery Bar Code Sorter (DBCS), as necessary, is a part of the Lead position.
The In-Plant Support Manager (S2) stated the Agency awarded Complainant the bid position pending Complainant providing medical certification that she could fully perform the duties of the assignment within six months of the bid. S2 stated that she informed Shared Services that Complainant did not provide medical certification. S2 stated that Complainant was not treated disparately.
A Workers' Compensation Specialist (HR1) stated that Complainant indicated that she could not perform the core function of her clerk assignment at that time so the Agency located work that was needed at the time based on restrictions provided. HR1 stated that Complainant was on leave under OWCP when the Agency awarded her the Lead Clerk bid, but upon her return to work she had to provide medical documentation supporting her ability to perform the functions of the position. HR1 stated Complainant's restrictions prevented her from assuming the position at that time. HR1 stated that the position required Complainant to work for eight hours but her medical documentation stated that she could only simple grasp for two hours and push and pull for two hours. HR1 stated that a supervisor must perform physical duties if no one else is available to perform said duties. HR1 stated, within six months of assuming the Lead Clerk position, Complainant stated that her neck and left shoulder hurt. Further, the Lead Clerk position required eight hours of work and Complainant was limited in what she could perform and for different lengths of time.
A Robotics Supervisor (S3) stated that Complainant requested an assignment within her medical restrictions. S3 stated the Agency awarded Complainant the bid assignment, but when Complainant reported to work, she stated that she could not perform the duties due to her restrictions.
Investigative Record
The record contains, in pertinent part, the following documents.
? Work Capacity Evaluation, dated September 27, 2012, specifying the following information.
"Patient can work 8 hrs. with restrictions listed below. . . . Length of restrictions are unknown."
? No repetitive motion,
? No reaching above shoulder, and
? Pushing, pulling, or lifting using both arms up to 20 pounds up to eight hours.
? Abbreviated Pre-Award Notice, dated May 14, 2013, awarding Complainant full-time Lead Mail Processing Clerk, Position 70707865, Level P7/07, Tour III. The Notice stated "Employee is currently out on OWCP." Also, there is a Medical Restriction footnote stating "does the employee currently have or can the employee produce medical certification indicating that he/she will be able to fully perform the duties of the bid assignment within six months of the bid?" The Notice also stated, "May be required to work other than principle assignment."
? U.S. Department of Labor (DOL) Work Capacity Evaluation, dated July 8, 2013, stating Complainant's restrictions are permanent and include reaching up to six hours, no reaching above shoulder, and pushing, pulling, or lifting up to 20 pounds for a maximum of eight hours.
? Letter, dated July 9, 2013, instructing Complainant to Report for Duty on July 27, 2013 and bring a physician-completed Duty Status Report.
? Email from OWCP, dated July 19, 2013, to HR1 acknowledging job offer. OWCP Claims Examiner found the offer "an appropriate assignment."
? Offer of Modified Assignment (Limited Duty), dated July 29, 2013, for Mail Processing Clerk. The Assignment offered work hours of 2:50 p.m. to 11:00 p.m. and "Sorting and Verifying Priority Parcels, Spurs", which required standing and tossing for eight hours. Nonscheduled days were Wednesdays and Thursdays. S1 and Complainant signed the offer.
? DOL Duty Status Report, dated August 8, 2013, specifying:
* no reaching above shoulder or repetitive motion,
* pulling/pushing and fine manipulation (including keyboarding) no more than two hours per day,
* twisting no more than three hours per day,
* bending/stooping or operating machinery no more than four hours per day, and
* lifting/carrying up to twenty-five pounds, standing, walking, and simple grasping no more than six hours per day.
Post-Investigation
Following an EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but the Agency issued a final decision in error. In Judi S. v. U.S. Postal Service, EEOC Appeal No. 0120150816 (August 5, 2016), this Commission vacated the final agency decision and remanded the matter to the Agency for further procedural processing.
Hearing
An EEOC AJ held a hearing on November 30, 2016. During the hearing, Complainant stated that she was on OWCP for two and a half to three years prior to returning to the Agency on July 29, 2013. Complainant stated that a manager did not want her in the Lead position because of her OWCP absence. Complainant stated that she returned to her Level 06 position in mid-August. Complainant stated that she did not have recent medical documentation when she returned to work because she had not been to a physician in eight months. Complainant stated that she was still on OWCP when she returned to work. Complainant stated that her medical conditions are not permanent and are consistently improving, and that she has learned to work around her impairments. Complainant stated, as of August 2016, she has a Level 07 position in a North Carolina facility.
The Distribution Operations Manager, S1, stated that Level 07 Lead Clerks have to perform some physical work, including repetitive motion, standing for long periods of time, and lifting above the head. Also, S1 stated that a Lead Clerk would have to work a DBCS machine when asked. S1 stated that she was instructed to inform Complainant to return to her regular tour on Tour One. S1 stated that a successful bidder on a modified job assignment must provide medical documentation that they can perform the job duties. S1 stated that Complainant did not provide such documentation. S1 stated that Complainant's restrictions stated that she would not be able to reach above her shoulders, so she could not perform the Lead Clerk functions.
Post-Hearing
On July 21, 2017, the presiding AJ issued a decision finding no discrimination, stating Complainant failed to show comparators were treated more favorably or that she was entitled to accommodation. The AJ found no denial of accommodation or disparate treatment. The AJ stated that Complainant failed to provide documentation to show that she could perform the duties of the Lead Clerk position. In pertinent part, the AJ stated:
Complainant's self-serving testimony that she had observed incumbents in the Lead Clerk position, and she believed she could perform the job notwithstanding the proffered requisite physical requirements of the job amounts to conclusory rationalization. Given these factors, managers had a reasonable belief that Complainant's ability to perform in the bid position would be impaired, and may subject her to injury and/or reinjury.2
Subsequently, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed.
On appeal, Complainant stated that the Modified Assignment did not include her higher-level position and the Agency provided incorrect paperwork. Complainant stated that management at the Agency's DC location did not afford her the opportunity to show she could perform the Lead Clerk position.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p).
After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002); see also, Abeijon v. Dep't of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994).
Assuming, without finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency failed to reasonably accommodate her as alleged. Complainant was an Agency employee who received OWCP benefits for two to three years and then was the senior bidder on a Level 07, Lead Mail Processing Clerk position with the Agency. When Complainant returned to work on July 29, 2013, the Agency presented her with a modified assignment for the Level 07 position because she was limited in what she could perform and in the maximum lengths of time she could perform different tasks.
Complainant's July 8, 2013 DOL Work Capacity Evaluation stated Complainant's restrictions are permanent and include reaching up to six hours, no reaching above shoulder, and pushing, pulling, or lifting up to 20 pounds for a maximum of eight hours. Her DOL Duty Status Report a month later (dated August 8, 2013) specified no reaching above shoulder or repetitive motion; pulling/pushing and fine manipulation (including keyboarding) no more than two hours per day; twisting no more than three hours per day; bending/stooping or operating machinery no more than four hours per day; and lifting/carrying up to twenty-five pounds, standing, walking, and simple grasping no more than six hours per day.
The Agency stated that it removed Complainant from the Level 07 bid position because she did not provide medical documentation that she could perform the job duties, as is required. The Agency stated that Complainant's medical documentation stated that she could not have repetitive motion or lift anything above her shoulder. The Agency noted that a Lead Clerk must process mail on a Delivery Bar Code Sorter when asked and perform physical duties if no one else is available to perform said duties. Further, the Agency stated that it did not treat Complainant disparately.
After a hearing, the presiding AJ rejected Complainant's contention that she could perform the Level 07 Lead Clerk position notwithstanding the proffered requisite physical requirements of the job. The AJ stated that Complainant's contentions amounted to "conclusory rationalization." Further, the AJ found Complainant uncooperative at times during the hearing.
Substantial evidence in the record supports the AJ's findings. Complainant has not shown that the agency failed to reasonably accommodate her alleged disabilities or treated her disparately when it did not allow her to remain in the Level 07 Lead Clerk position and returned her to a Level 06 Clerk position based on her medical restrictions.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.
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.
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. 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
August 21, 2018
__________________
Date
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.
2 We note that the assigned AJ found Complainant uncooperative in responding to several questions during the hearing.
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