Linn A.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Oct 21, 2016

0120140990 (E.E.O.C. Oct. 21, 2016)

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

Linn A.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120140990

Hearing No. 443-2013-00116X

Agency Nos. 4-E570-0054-12 & 4J-604-0133-12

DECISION

On December 30, 2013, Complainant filed an appeal from the Agency’s December 18, 2013,
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. The Commission deems the appeal
timely and accepts it for de novo review. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

On December 17, 2012, Complainant filed two EEO complaints alleging that the Agency
discriminated against her on the basis of disability (asthma, diabetes, migraine headaches, back
and left ankle pain, personality disorder) in connection with three nonselections that allegedly
occurred between August and December 2012. In Complaint No. 4-E570-0054-12,
Complainant alleged that the Postmaster of the Post Office in Dell Rapids, South Dakota
discriminated against her by not selecting her to fill a position as a Temporary Rural Carrier
(TRC) between July 30, 2011 and August 10, 2012. In Complaint No. 4J-604-0133-12, she
alleged that on unspecified dates, she was not hired at the Processing and Distribution Centers
(PDC) in Bedford Park, Illinois, or in Springfield, Illinois because of her disabilities.

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.
0120140990

2

The Agency investigated both complaints separately and provided Complainant with a copy of
the investigative reports2 and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Although Complainant
timely requested a hearing, the AJ assigned to the case consolidated the two complaints,
granted the Agency’s September 6, 2013 motion for summary judgment over her objection and
issued a decision on November 25, 2013 without holding a hearing. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

Complaint No. 4-E570-0054-12:

Complainant submitted her application for the TRC position in July 2011. In an email to
Complainant dated July 30, 2011, the Dell Rapids Postmaster offered her the position with a start
date of August 20th. The offer was conditional upon Complainant passing all pre-screening
requirements. IR1 155.

The TRC was physically demanding, with functional requirements that included heavy lifting up
to 70 pounds, heavy carrying up to 45 pounds, standing and walking for up to 8 hours per day,
reaching above the shoulder, pulling, kneeling, bending, and operating a motor vehicle. IR1 144.
Complainant never reported for duty, however, because there were delays in the scheduling of
her pre-employment physical examination. In a medical assessment form dated October 27,
2011, the examining physician noted that Complainant’s back condition might worsen, that her
history of migraine headaches raised questions about her ability to operate a motor vehicle, and
that she would have difficulty lifting 70-pounds. IR1 160.

As of December 19, 2011, Complainant was placed under the following restrictions: no
repetitive grasping with either hand; no operating a motor vehicle; no repetitive duties; no more
than 1 hour of standing per day; and no walking more than 2-3 miles per day. IR1 161-62. On
the basis of this information, the Dell Rapids Postmaster decided not to hire Complainant, noting
that he was not comfortable hiring an individual whose physician recommended that she not
drive. IR 162-63.

In a letter to Complainant dated December 27, 2011, the Human Resources Generalist Principal
(hereinafter referred to as the “HR Specialist”) identified her medical restrictions and invited her
to respond to their negative determination before the Agency made any final decisions regarding
her medical suitability for the position. IR1 164. In an undated response, Complainant stated that
she was still interested in the TRC position at Dell Rapids, asked what accommodations could be
provided to her, and indicated that if she could not be accommodated, she wished to be
considered for other positions within her medical restrictions. IR1 166.

2 The investigative report corresponding to Complaint No. 4-E570-0054-12 shall hereinafter be
referred to as “IR1,” and the report corresponding to Complaint No. 4J-604-0133-12 shall
hereinafter be referred to as “IR2.”
0120140990

3
In a letter to Complainant dated April 4, 2012, the HR Specialist noted that in her response,
Complainant had not offered any comments about how she would perform the requirements of
the TRC position within her medical restrictions. The HR Specialist advised Complainant that
this would be her final opportunity to provide the requested information, and that she needed to
do so within 15 days. IR1 167. Complainant responded by letter dated April 15th. Among other
things, she asked for breaks every half hour to relieve standing. She also asked that in order that
her asthma not be aggravated, she not be required to work with substances that produced strong
odors, and that she be allowed to use a bicycle in lieu of walking. IR1 169. In an email to other
human resources staff members dated June 18, 2012, the HR Specialist stated that Complainant
had still not provided adequate information as to how she would perform in the TRC position
under her medical restrictions. IR1 170.

On July 5, 2012, the HR Specialist received word from the District Office in Sioux Falls that in
accordance with a recent arbitration decision, the local post offices within the district, including
Dell Rapids, would discontinue its use of TRCs and would no longer hire TRCs as of August 11,
2012. IR1 171-72, 193. By letter dated August 10th, the HR Specialist notified Complainant that
the TRC position that she had applied for was no longer available. IR1 136-37, 197.
Complainant acknowledged receiving that letter. IR1 118.

When asked by the investigator why she believed that her disability was a motivating factor in
the Agency’s failure to hire her for the TRC position in Dell Rapids, Complainant responded that
her applications were declined at Bedford Park and Springfield for medical reasons. IR1 120.
She averred that she also made requests for accommodation but was unable to locate her letter
documenting those requests. IR1 115, 117. When asked to explain why she believed that she
was not accommodated, Complainant responded, “not applicable.” IR1 116.

Complaint No. 4J-604-0133-12:

On July 27, 2012, Complainant applied for a position as a Casual Mail Carrier at the
Processing and Distribution Center in Bedford Park, Illinois. The Customer Relations
Coordinator at the Agency’s Processing and Distribution Center in Springfield, Illinois averred
that she had interviewed Complainant for the position and decided not to hire her because she
appeared lethargic and “under the influence of something” during the interview. Complainant
was notified that she was not selected by a system-generated email dated October 10, 2012.
IR2 108, 110, 142, 180, 184.

On December 2, 2012, Complainant submitted an application for another Casual Mail Carrier
position located at the Springfield Center. IR2 108. The Customer Relations Coordinator
interviewed Complainant for this position on December 7th, and this time, she made the
decision to hire her. IR2 111-12, 126, 180-81, 186, 234. The Customer Relations
Coordinator averred that she was unaware of Complainant’s medical conditions. IR2 113.

On December 8th, Complainant accepted an offer from the Dakota Central Processing and
Distribution Center. IR2 241. On December 24th, she received an email from the Secretary to
0120140990

4
the Plant Manager at the Springfield Center reminding her that she needed to submit her
paperwork so that she could be cleared to report for duty. IR2 238-239. Complainant
responded the same day by email that she was in Huron, South Dakota awaiting medical
forms, but that she was still interested in working at the Springfield Center. IR2 240. She did
not follow up with the Secretary’s request, however, and consequently never received a formal
offer from the Springfield facility.

Complainant did not submit an affidavit to the investigator in Complaint No. 4J-604-0133-12.
However, when responding to the EEO Counselor’s inquiry as to why she believed that she
was discriminated against on the basis of disability with respect to the Bedford Park and
Springfield nonselections, Complainant stated: “I was not given special accommodation or a
job that I could do.” IR2 72. The officials at the Springfield Center who were involved in the
processing of Complainant’s application all averred that Complainant never requested an
accommodation. IR2 144, 146-47, 158-59, 188

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to warrant a hearing on her claim of disparate treatment in
connection with the Agency’s decisions not to hire her, Complainant would have to present
enough evidence to raise a genuine issue of fact as to whether the Dell Rapids Postmaster or
the Springfield Customer Relations Coordinator were motivated by unlawful considerations of
her multiple disabilities when they made those decisions. See 29 C.F.R. § 1614.109(g);
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
fact as to motive by presenting evidence tending to show that the reasons articulated by the
Dell Rapids Postmaster and the Springfield Customer Relations Coordinator for not hiring her
were pretext, i.e., not the real reason but rather a cover for disability discrimination. St.
Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by
showing such inconsistencies or contradictions in the Agency’s proffered legitimate reasons for
its actions that a reasonable fact finder could rationally find them unworthy of credence.
Opare-Addo v. United States Postal Service, EEOC Appeal No. 0120060802 (November 20,
2007), request for reconsideration denied EEOC Request No. 0520080211 (May 30, 2008).

With regard to Complainant’s nonselection for the Dell Rapids TRC position, the emails and
correspondence, and the HR Specialist’s affidavit demonstrate that the Agency kept her
application open for more than a year and had made repeated requests for Complainant to
submit updated medical information, which Complainant did not do. The offer was ultimately
withdrawn when the Agency decided that it would phase out the TRC position. As to the
Casual Mail Handler positions in Bedford Park and Springfield, the Customer Relations
Coordinator averred that she declined to hire Complainant for the former position based on her
0120140990

5
interview performance, but that she recommended that Complainant be hired for the latter
position. Complainant was given a conditional job offer contingent upon her completing the
necessary medical forms. Complainant neither submitted the requested information nor a
reasonable accommodation request. The offer was rescinded after Complainant informed the
officials at the Springfield Center that she had accepted an offer from the Processing and
Distribution Center in Huron, South Dakota. Complainant has not submitted any sworn
statements from other witnesses or documents that contradict the explanations provided by the
Dell Rapids Postmaster and the Customer Relations Coordinator at Springfield, or which call
their veracity into question. We therefore find, as did the AJ, that no genuine issue of material
fact exists with respect to the motivations of these officials in connection with any of the
incidents at issue in her complaints.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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.

0120140990

6
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

October 21, 2016
Date