Nannette T.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 1, 2016

0120142927 (E.E.O.C. Feb. 1, 2016)

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

Nannette T.,1
Complainant,

v.

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

Appeal No. 0120142927

Agency No. 1C-145-0007-13

DECISION

On August 12, 2014, Complainant filed an appeal from the Agency’s July 13, 2014 final
decision 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 pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Mail Processing Clerk at the Agency’s Processing & Distribution
Center facility in Rochester, New York. On December 6, 2013, she filed an EEO complaint
in which she alleged that the In-Plant Support Manager (IPSM) failed to reasonably
accommodate her disability (residual effects in the neck, shoulders, and back from on-the-job
injuries) by informing her on August 8, 2013, that she should not report for work because no
work was available within her medical restrictions. At the conclusion of the ensuing
investigation, the Agency provided Complainant with a copy of the investigative report (IR)
and notice of her right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). On June 2, 2014, Complainant requested a final
decision on the merits of her complaint. In accordance with Complainant’s request, the

1This 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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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 subjected her to discrimination as alleged.2

Complainant sustained on-the-job injuries in December 2010 and again in August 2012. She
was diagnosed with lumbar strain, joint inflammation, and radiculopathy, a degeneration of the
spinal nerve roots. Between January 2011 and August 2013, she had been receiving
compensation for the Department of Labor and had been given a series of temporary light duty
assignments. IR 175, 178-82, 327-28.

In a letter addressed to Complainant from the Labor Relations Manager (LRM) in his capacity
as the Chairman of the District Reasonable Accommodation Committee (DRAC) dated August
1, 2013. Complainant was informed that the DRAC did not consider her to be a qualified
individual with a disability. The LRM stated that the essential functions of Complainant’s
current position and of positions to which she sought to be reassigned exceeded her medical
restrictions, which included: lifting, carrying, pushing, and pulling no more than ten pounds;
alternate walking, standing, sitting, and stooping every hour; no twisting; and no climbing
stairs or ladders. In particular, the LRM noted that Complainant’s restrictions precluded her
from performing the essential functions of her bid position such as lifting trays and buckets of
mail weighing up to 40 pounds, pushing containers of mail weighing up to 1,000 pounds,
bending, stooping intermittently or repetitively when picking up and moving trays of mail, and
twisting. The LRM also noted that the DRAC searched within a 50-mile radius for positions to
which Complainant could be reassigned, but were unable to find any positions that conformed
to her restrictions or to which her reassignment would not have resulted in a violation of the
collective bargaining rights of other employees. Finally, the LRM noted that although
Complainant had been performing expeditor duties in several jobs, these were marginal job
functions and that the Agency did not have an obligation to create a permanent job for her. IR
193-94, 312-13.

In his affidavit, the LRM testified that the DRAC’s decision was arrived at after an interactive
session with Complainant that took place on June 17, 2013, and that Complainant had been in a
series of temporary light duty assignments, the last of which expired on March 13, 2013. IR
186-89, 191-92, 209, 305-07, 319-20, 329. 336-37, 362-64 . The IPSM testified that he was
the one who informed Complainant on August 8, 2013, that no work was available and told her
not to report, and that he did so based on the decision of the DRAC dated August 1, 2013. IR
292.

2Complainant also alleged discrimination on the bases of race (African-American) and color
(Brown) in connection with being told on August 8, 2013, not to report for work. However,
when asked by the investigator why she believed that her race and color were factors in the
Agency’s action, Complainant replied “not applicable.” IR 170-71. On appeal, Complainant
does not challenge the Agency’s conclusion in its final decision that she was not discriminated
against on the bases of race or color.
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ANALYSIS AND FINDINGS

The Agency must reasonably accommodate the known limitations of a qualified individual with
a disability unless it can show that the accommodation would cause an undue hardship. 29
C.F.R. § 1630.9(a).

An individual with a disability is one who: has, has a record of, or is regarded as having a
physical or mental impairment that substantially limits one or more of that person's major life
activities. 29 C.F.R. § 1630.2(g). The Agency concedes that the long-term residual effects of
the on-the-job injuries sustained by Complainant render her an individual with a disability.

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 who, with or without reasonable accommodation,
can perform the essential functions of such position. 29 C.F.R. § 1630.2(m).

There is no
question that Complainant satisfied the skills and experience requirements of the Mail
Processing Clerk position. However, the record contains extensive records, including clinical
evaluations from the Agency’s outside medical contractor, applications to the Office of
Workers’ Compensation Programs, limited duty offers, temporary light duty assignment
offers, and notes from Complainant’s treating physicians documenting Complainant’s condition
and the restrictions she was under in August 2013. The Agency followed its reasonable
accommodation protocols by engaging in the interactive process with Complainant on June 17,
2013, and by conducting extensive searches for positions and job duties that conformed to her
restrictions. It was only when those searches, including searches for positions to which
Complainant could be reassigned, came up empty that the DRAC reached its conclusion that
Complainant was unable to perform the essential functions of her job.
The IPSM testified that he told Complainant about the lack of available work after he had been
notified of the DRAC’s decision. Complainant has not provided any sworn statements from
other witnesses or documents that contradict the IPSM’s explanation or which call his veracity
into question. Rather, Complainant argues that she could have continued to perform the duties
of Expeditor that she had been performing while in temporary light duty status. Those duties,
however, were marginal functions of the Mail Processing Clerk position. To provide the
accommodation that Complainant requested would have entailed creating a new position for her
that would have eliminated virtually all of the essential functions of the Processing Clerk
position. Undue hardships include eliminating essential job functions and making
reassignments that violate collective bargaining agreements. See 29 C.F.R. § 1630.2(p);
Gerald L. v. Department of Veterans Affairs, EEOC Appeal No. 0120130776 (November 10,
2015) ; Reiter v. United States Postal Service, EEOC Appeal No. 01920467 (July 2, 1992);
Wiley v. United States Postal Service, EEOC Request No. 05880197 (July 31, 1990). To
grant Complainant her requested accommodation would have done both. Based upon our
findings, we agree with the Agency that allowing Complainant to continue to perform
Expeditor duties indefinitely would have imposed an undue hardship upon its operations.
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Consequently, we find, as did the Agency, that Complainant was not a qualified individual
with a disability.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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”
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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

February 1, 2016
Date