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

Equal Employment Opportunity Commission

Dec 7, 2016

0120142705 (E.E.O.C. Dec. 7, 2016)

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

Luann L.,1
Complainant,

v.

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

Appeal No. 0120142705

Hearing No. 450-2012-00077X

Agency No. 4G-752-0249-11

DECISION

Complainant filed an appeal from the Agency’s final order dated June 26, 2014, finding no
discrimination with regard to her 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final order
finding no discrimination.

BACKGROUND

In her complaint filed on August 8, 2011, Complainant alleged discrimination based on
race/color (Black), national origin (African American), sex (female), age (over 40), disability
(myasthenia gravis) and in reprisal for prior EEO activity when:

(1) From April 4, 2011, to April 30, 2011, she was not allowed to return to work; and

(2) From May 1, 2011, to present, she was not allowed to return to work.

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.
0120142705

2

The record indicates that at the conclusion of the investigation, Complainant requested a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On
June 19, 2014, the AJ, after a hearing, issued a decision finding no discrimination, which was
implemented by the Agency in its final order.

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, § VI.B. (November 9, 1999).

In this case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was
employed as a Letter Carrier at the Agency’s Northwest station, Dallas, Texas. In 1990,
Complainant was diagnosed with Myasthenia Gravis, which is a degenerative autoimmune
disease, and had been accommodated with a light duty assignment since 1992. The record
indicates that Complainant worked at the Agency’s Inwood station until February, 2011, when
it was merged with the Northwest station.

Complainant’s manager stated that he has known Complainant since she came to work at the
Northwest station on February 18, 2011. The manager indicated that at the relevant time
period, the Agency underwent a National Reassessment Process in which available work was
identified and assigned to injured employees with limited duty (injured on-the-job) getting
priority. The manager stated that Complainant was initially allowed to work her light duty
assignment for 90 days under the Agency’s policy. After the 90-day period, the manager
stated that he contacted the Agency’s Injury Compensation Office and was informed that she
did not have an open Office of Workers’ Compensation Program (OWCP) case. The manager
stated that he then asked Complainant several times to provide him with documentation
concerning her limitations so he could determine her limited/light duties. The manager stated
that Complainant failed to provide such documents. The manager stated that there were many
limited duty carriers needing work and that there was no available work to accommodate light
duty carriers who were unable to carry routes. The manager further asserted that there was no
0120142705

3
vacant funded positions to which she could be reassigned and thus she was sent home and had
not been brought back to work.

The record indicates that as a Letter Carrier, Complainant was required to drive, carry a pouch
of mail, and deliver/sort mail. The record also indicates that according to her duty status
reports, Form CA-17, dated March 7, 2010, and June 24, 2010, Complainant was restricted
to: no driving duties; no outside work (no exposure to heat or cold); no climbing/kneeling;
and lifting up to 10 pounds. The Agency indicated that while Complainant was at Inwood
station, she was on light duty when work was available, i.e., performing office duties
sorting/casing/splitting/boxing mail and working carrier routed mail.

The AJ stated that the Agency Human Resources Department provided evidence that there
were no vacant funded position to which Complainant could be reassigned during the relevant
time period. The AJ also indicated that Complainant failed to show that there was available
work for her within her limitations. On appeal, Complainant indicates that an identified Letter
Carrier was given a business route. She however did not indicate that she was able to perform
the same route. Based on the record, Complainant clearly cannot perform that route since she
was restricted from driving or working outside. The Agency also indicates that the identified
Letter Carrier was on limited duty and performed the essential functions of his position
working 8 hours/day, casing/carrying his route, and also helping other routes.

Assuming (without deciding) that Complainant was an individual with a disability, the
Commission finds that she failed to show that she was denied a reasonable accommodation or
that any Agency actions were motivated by discrimination. Complainant does not allege that
she was required to perform duties beyond her medical restrictions. We find that Complainant
failed to show that she was treated less favorably than a similarly situated employee under
similar circumstances or that the Agency’s reason for its actions was a pretext for
discrimination. The AJ found and we agree that Complainant failed to show that the Agency’s
proffered reason was a pretext for discrimination.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order is AFFIRMED because the AJ’s decision is supported by
substantial evidence.

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:

0120142705

4
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
0120142705

5
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

December 7, 2016
Date