0120140171
08-30-2016
Kacy C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kacy C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120140171
Hearing No. 410-2013-00027X
Agency No. 1K301002512
DECISION
On October 27, 2013, Complainant filed an appeal from the Agency's September 25, 2013, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant based on disability, and in reprisal for prior EEO activity when on December 14, 2011, it required her to return to work, against her doctor's advice; and on January 3, 2012, she was denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Support Clerk at the Agency's Atlanta Processing and Distribution Center in Atlanta, Georgia. In March 2011, Complainant sustained a workplace injury. She did not report to work, and received workers' compensation benefits.
On October 19, 2011, Complainant underwent a medical evaluation with a doctor (DR1), who stated that Complainant had "right closed tibula and ankle fractures," which were currently active. DR1 stated that Complainant's conditions were not "a total disability," and do not prevent her from returning to her job. On October 28, 2011, the Department of Labor's Office of Workers' Compensation Program (OWCP) notified Complainant of a proposed termination of her benefits, and gave her thirty days to respond to the proposal; Complainant did not respond. On December 5, 2011, the OWCP terminated Complainant's workers' compensation benefits based upon DR1's statement. Complainant filed a request for reconsideration on December 9, 2011, and provided additional medical documentation.
On December 14, 2011, an Agency Health and Resource Management Specialist (HRMS) sent Complainant a letter instructing her to return to work based on the OWCP's termination of her claim. The letter also outlined the process to request light duty or a reasonable accommodation. On December 17, 2011, Complainant saw another doctor (DR2), who stated that Complainant could only return to work if she was on "100% desk duty." DR2 stated that Complainant was unable to stand for more than five minutes without assistance, and was unable to lift more than five pounds at a time. DR2 also stated that "any attempt to force [Complainant] to return to work is against [his] clinical judgment."
On January 3, 2012, Complainant returned to work. She spoke with a Manager, Maintenance Operations (MMO1), and requested reasonable accommodations of a parking spot close to the building, and a written Limited Duty assignment. The MMO1 spoke with another Manager, Maintenance Operations (MMO2), who stated that he would speak to the Agency police regarding the parking spot.
On January 17, 2012, the OWCP issued its decision for Complainant's reconsideration of the termination of her workers' compensation benefits. The OWCP determined that Complainant's disability had not been resolved, and vacated its December 5, 2011 decision. In the decision, the OWCP noted that following Complainant's injury, it had contacted DR2 for information about Complainant's condition, but that he did not respond. Accordingly, they requested that Complainant see DR1 for an evaluation, and relied upon his statement when it decided to terminate her benefits. The OWCP reinstated Complainant's benefits based upon additional medical documentation.
On April 18, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Severe Post Traumatic Osteoarthrosis of the right ankle), and in reprisal for her prior EEO case in 2011 when:
1. on December 12, 2011, it required her to return to work, against her doctor's advice; and
2. on January 3, 2012, she was denied a reasonable accommodation.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded that Complainant failed to prove that management officials subjected her to discrimination as alleged.
The Agency found that Complainant had not established a prima facie case of discrimination based on disability because she had not shown that she was qualified for her position, and she had not presented any evidence from which to draw an inference of discrimination. The Agency also found that Complainant had not established a prima facie case of reprisal discrimination because there was no nexus between her prior EEO case, and the alleged discrimination in the instant case.
The Agency assumed that Complainant had established a prima facie case of discrimination based on disability, and in reprisal for prior EEO activity, and found that the Agency provided legitimate, non-discriminatory reasons for its actions. The HRMS stated that based on the OWCP's letter terminating Complainant's workers' compensation benefits, she sent the letter advising Complainant to return to work. In regards to Complainant's request for reasonable accommodation, the MMO1 stated that Complainant verbally requested a closer parking spot, but that she was again out of duty before a decision could be made on her request. The Agency then found that Complainant had not shown that the proffered reasons were pretext for discrimination, and concluded that the Agency did not discriminate against Complainant based on disability, or in reprisal for prior EEO activity.
Complainant filed the instant appeal. On November 19, 2013, Complainant requested a 60-day extension to file a brief in support of her appeal, but did not submit an appeal brief. The Agency did not file an opposition brief.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant has established a prima facie case of discrimination based on disability, and in reprisal for prior EEO activity, we find that the Agency articulated a legitimate, non-discriminatory reason for its action. For claim 1, the HRMS stated that Complainant was directed to return to work based on the OWCP's termination of her workers' compensation benefits, and the DR1's statement that she could perform the duties of her position as a maintenance support clerk. Complainant has not shown that the proffered reasons were pretext for discrimination, and as such, we find that the Agency did not discriminate against Complainant based on disability, or in reprisal for her prior EEO activity when it ordered her to return to work.
Failure to Provide 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. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
Assuming, arguendo, that Complainant was a qualified individual with a disability, we find that she has not shown that the Agency failed to provide her with a reasonable accommodation. Complainant requested her accommodations on January 3, 2010, when she returned to work, and her request became moot when her workers' compensation benefits were reinstated, and she stopped reporting to work on January 17, 2010. We find that the Agency was processing her request in the two weeks that Complainant was in a duty status, from January 3, through January 17, 2010, which is not an unreasonable delay in the processing of her request. Accordingly, we find that the Agency did not discriminate against Complainant based on disability when it failed to provide a reasonable accommodation.
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 decision finding that Complainant did not show that the Agency discriminated against her based on disability, or in reprisal for prior EEO activity when on December 12, 2011, it required her to return to work, against her doctor's advice; and on January 3, 2012, she was denied a reasonable accommodation.
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.
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 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
__8/30/16________________
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.
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