Lavonia M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Apr 17, 2019

0120180251 (E.E.O.C. Apr. 17, 2019)

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

Lavonia M.,1
Complainant,

v.

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

Appeal No. 0120180251

Hearing No. 450-2016-00256X

Agency No. 4G-760-0009-16

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated September 20, 2017, finding no
discrimination concerning her 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, we AFFIRM the Agency’s final decision finding no
discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a full time Rural
Carrier at the Agency’s Granbury Post Office in Granbury, Texas.

On December 15, 2015, Complainant filed her complaint alleging discrimination based on
disability (leg) and in reprisal for prior EEO activity when on September 24, 2015, her
reasonable accommodations were rescinded, and she was sent home.

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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After completion of the investigation of the complaint, Complainant initially requested a hearing
before an EEOC Administrative Judge but later withdrew the request. The Agency thus issued
its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its
action, which Complainant failed to rebut. Complainant filed the instant appeal from the Agency
decision.

ANALYSIS AND FINDINGS

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 (EEO MD-110), Chap. 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").

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable
accommodation, Complainant must show that: (1) he or she is an individual with a disability, as
defined by 29 C.F.R. § 1630.2(g); (2) he or 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
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). 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. See 29 C.F.R. §
1630.2(o) and (p). The Commission shall assume without deciding (for the purposes of this
decision) that Complainant is an individual with a disability.

As a Rural Carrier, Complainant’s duties involved delivering and collecting mail and selling
stamps, supplies, and money orders five days a week and loading and unloading trays and
containers of mail and parcels weighing as much as 70 pounds. Complainant indicated that she
sustained an on-the-job injury on June 18, 2015, injuring her knee and cracking her ribs. As a
result, she had restrictions: lifting up to 10 pounds, sitting up to 4 hours, walking up to 2 hours,
and no prolonged driving.

The Postmaster indicated that Complainant filed her Office of Workers’ Compensation Programs
(OWCP) claim for her injury. Her OWCP claim was initially accepted and she was offered and
accepted a modified job assignment on July 7, 2015. In that assignment, Complainant cased her
route as needed, handling certified mail notices, box mail, dusting, and emptying trash, and no
driving.
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The Postmaster stated that on September 24, 2015, she learned that Complainant’s OWCP claim
was subsequently denied on August 26, 2015; she, thus, rescinded Complainant’s modified job
assignment. Her decision, stated the Postmaster, was not based on Complainant’s disability as
alleged. The Postmaster noted that Complainant did not request an accommodation for her
conditions due to the injury.

Complainant acknowledges that she was subsequently referred to the District Reasonable
Accommodation Committee. Complainant states that, in reconsideration, her OWCP claim was
subsequently accepted.2 Complainant also admits that she was then offered and accepted a new
modified job assignment on February 5, 2016. Complainant, later that day (February 5, 2016),
rescinded her acceptance of the job offer.3 The Agency noted that at the same time (two hours
after Complainant accepted the modified job assignment), she submitted her doctor’s report
dated February 2, 2016, stating that she was unable to work at all.

Based on the foregoing, we find that Complainant failed to show that she was denied a
reasonable accommodation or that any Agency actions were motivated by discrimination.
Complainant was not able to perform the essential functions of her Rural Carrier position duties.
Therefore, we find that Complainant was not a “qualified” disabled individual during the
relevant time period because she could not perform the essential functions of the position which
involved loading and unloading mail trays weighing up to 70 pounds. Complainant did not
identify a vacated funded position which met her medical restrictions. Furthermore, regarding
the claim of retaliation, there is no indication that the Agency’s decision to not allow
Complainant to continue in her OWCP generated duties was motivated by retaliation. Instead, it
is clear that the Agency’s action was motivated by OWCP’s reversal of the initial OWCP
decision.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

2 It appears that OWCP made multiple decisions on Complainant’s OWCP claims.
3 On appeal, Complainant states she rescinded the acceptance of the offer so she could have
surgery (due to Department of Labor’s authorization of surgery).
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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.
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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

April 17, 2019
Date