0120160267
04-27-2018
Lenita T.,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
Lenita T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120160267
Hearing No. 430-2013-00407X
Agency No. 4K-230-005813
DECISION
On October 21, 2015, 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 October 6, 2015, 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 (FAD) which found that Complainant did not demonstrate that she was subjected to discrimination.
ISSUE PRESENTED
The issue presented is whether the FAD erred in finding that there was no discrimination or that Complainant was denied a reasonable accommodation when she was sent home because there was no work available within her restrictions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time City Carrier at the Agency's Yorktown Post Office in Yorktown, Virginia. Complainant sprained her left wrist on October 5, 2012, and was ordered by her physician to not lift more than five pounds. For several months, Complainant was given other duties that did not include using her arm. Once Complainant's cast was removed, her doctor indicated that she could not lift. On her behalf, Complainant's supervisor submitted her information to the Reasonable Accommodation Committee. According to the nomination form, Complainant had been injured on duty and could not perform her Carrier duties as she had no use of her right and left hands. The nomination form further indicated that although Complainant had complained to her supervisor, she had not agreed to be nominated to the Reasonable Accommodations Committee nor did she have an idea of the type of accommodation that she would need. Complainant was advised to provide medical documentation. Her documentation revealed she had been off work since April 13, 2013, due to severe inflammation and pain related to her right hand. It was further noted that Complainant had a permanent physical impairment to her left hand. On January 17, 2013, Complainant was offered a modified assignment.
Complainant maintained that she had been discriminated against based on her disability. She indicated that she was forced to use her leave because her supervisor stated that he did not have any work available for her because of her left hand being in a cast. Complainant complained that she should have been allowed to work a full eight-hour day but she was denied that right and she was denied a lunch and was only allowed to work for three hours from 10:00 a.m. to 1:00 p.m., from January 17, 2013 through January 31, 2013. She indicated that she was treated differently than several coworkers. She argued that two white employees were treated more favorably as one was assigned to a new position and another had been allowed to do nothing for years.
On April 20, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Brown), and disability (Torn Ligament on left wrist) when on January 17, 2013 management completed a new Form 2499 (Offer of Modified Assignment - Limited Duty) for her and forced her to take leave.2
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. 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 decision concluded that Complainant failed to prove that the Agency denied her a reasonable accommodation or subjected her to discrimination as alleged. Specifically, the FAD found that assuming arguendo that Complainant was an individual with a disability, her medical documentation showed that she could not perform the essential functions of her position as she was limited in her ability to lift with her left hand, thus affecting her ability to carry and deliver her route.
The Agency maintained that Complainant had been provided work within her medical restrictions on January 17, 2013. The Agency also noted that it was her supervisor who nominated her for a reasonable accommodation. According to Complainant's response to the Agency's nomination, she merely requested to remain on light duty indefinitely.
Further, the Agency pointed out that Complainant was not entitled to an accommodation of her choice, but only an accommodation that would enable her to perform her job. The record revealed that the Agency acted to accommodate Complainant's medical condition based on her restrictions and that the Agency offered a modified job that it believed would accommodate her condition. There is nothing in the record, according to the Agency, to suggest that it refused any reasonable accommodation put forth by Complainant.
Finally, the Agency found that Complainant did not demonstrate that she was subjected to discrimination. Complainant did not show that similarly situated coworkers not of her protected bases were treated more favorably. The Agency indicated that the two comparators referenced by Complainant were not similarly situated as one of the comparators had an injury but it was not an on-the-job injury. Moreover, the comparator had trained to be a 204B, so she was issued a new job offer. The other comparator, who was on permanent light duty for an injury to her shoulder, had reached maximum medical improvement (MMI) within one year of her injury and was placed in the permanent light duty position by a supervisor other than Complainant's supervisor. As such, the Agency found that Complainant and her comparators were not similarly situated. Complainant also referenced three other employees who, like her were injured on the job, but the record showed that they too were issued new job offers when they presented new medical documentation.
The Agency indicated that even assuming arguendo that Complainant established a prima facie case of discrimination as to all of her bases, management maintained that the new Form 2499 was necessitated by Complainant's presentation of her medical documentation and at no time was Complainant forced to take leave. In fact, she indicated that she was taking leave in order to get a paycheck until her worker's compensation was approved. The Agency found that Complainant did not show that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she has been diagnosed with rheumatoid arthritis in her wrist and did not learn of her diagnosis until January 2013. She maintains that there was confusion regarding what she should do with her claim and that no department within the Agency was helpful.
In response, the Agency contends that it did not deny Complainant a reasonable accommodation as it provided her work within her restrictions. The Agency also maintains that Complainant was not subjected to discrimination as she was provided a new Form 2499 based on her restrictions. The Agency requests that the FAD be affirmed.
ANALYSIS AND FINDINGS
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").
The Commission's regulations require an agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � 1630.2(n)(3).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume that Complainant is a qualified individual with a disability, the evidence shows that she was given work to do within her restrictions. While Complainant wanted to perform light duty indefinitely, the Commission has held that an agency is not obligated to allow an employee to permanently perform nonessential duties as a reasonable accommodation. See Vina D. v. Dep't of Homeland Security, EEOC Appeal No. 0120152229 (Jul. 26, 2017); Spry v. U.S. Postal Serv., EEOC Petition No. 03980078 (Dec. 11, 1998).
To the extent that Complainant's argument is that she received a new Form 2499, absent any new medical documentation, the record shows that after Complainant had her cast removed she was still unable to return to her regular job duties. Therefore, Complainant was offered a new Form 2499, to give her work that was within her restrictions. The Commission has long held that as long as an employee is provided a reasonable accommodation it does not have to be the accommodation of choice. We find that other than information regarding her diagnosis of rheumatoid arthritis, Complainant simply has not provided persuasive evidence which shows that the FAD incorrectly found that she was not subjected to discrimination or was denied a reasonable accommodation.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which determined that Complainant did not demonstrate that she was denied a reasonable accommodation or subjected to 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.
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
_4/27/18_________________
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 Complainant also alleged that she wanted her Workers' Compensation claim to be reconsidered. The Agency dismissed this claim as a collateral attack on the workers' compensation process. Complainant does not bring this claim up on appeal so it will not be addressed herein.
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