Nila S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jul 14, 2017

0120151302 (E.E.O.C. Jul. 14, 2017)

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

Nila S.,1
Complainant,

v.

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

Appeal No. 0120151302

Hearing No. 530-2012-00218X

Agency No. 4C-190-0098-11

DECISION

The Commission accepts Complainant’s appeal from the Agency’s January 28, 2015, final order
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. The Commission’s review is de novo. For the following
reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales and Service
Distribution Associate at the Agency’s East Falls Post Office in Philadelphia, Pennsylvania. On
June 11, 2008, Complainant sustained a work-related injury to her lower back. Complainant
submitted a claim to the Office of Workers’ Compensation Programs (OWCP). Complainant’s
OWCP claim was accepted on February 26, 2009, and the Agency placed her in a limited duty
assignment. On November 10, 2010, the Agency placed Complainant in a detail assignment at
the East Germantown Station. By July 2011, Complainant’s restrictions included no lifting more
than 35 pounds; no more than four hours of kneeling; no more than two hours of

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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bending/stooping; and no more than eight hours of standing, walking, pulling/pushing, twisting,
simple grasping, fine manipulation, and reaching above her shoulders.

On or about June 30, 2011, the Agency posted bid Job No. 95409265 for a Sales and Services
Distribution Associate position at the East Germantown Station. On July 9, 2011, Complainant
submitted a bid for the position. On July 15, 2011, Complainant was designated as the senior
bidder for the position “pending qualification.” One of the qualification issues was whether the
senior bidder was currently working a light or limited duty assignment due to a temporary
disability.

The Customer Services Support Supervisor (S1) contacted Complainant’s manager at East
Germantown (M1) to inquire as to whether Complainant was working in a light or limited duty
assignment. S1 informed M1 that Complainant was working in a limited duty assignment. On
July 14, 2011, S1 sent Complainant a letter instructing her to “obtain a medical certification from
her physician certifying that she would be able to fully perform the duties of the bid-for position
within six months of the bid.” Further, S1 directed Complainant to submit her medical
certification from her physician to the Occupational Health Nurse Administrator (OHNA) and
that if she failed to provide the certification, her bid would be disallowed.

On July 26, 2011, Complainant’s doctor responded to S1’s letter stating that Complainant had
“been limited in her return to work with restrictive duties” and that it was his “hope that
she[would] show improvements in her condition over the coming months (maximum of six) with
conservative management.” Complainant’s doctor added that “eventually [he] would like to
return [Complainant] to her normal work activities with minimum adjustments and/or reasonable
accommodations to be made.” The Occupational Health Nurse at the Philadelphia Medical Unit
processed the information, summarized Complainant’s doctor’s letter, and emailed S1 on July
29, 2011. Based on his review of the summary that the Nurse provided, S1 recommended that
Complainant’s bid be disallowed. S1 concluded that Complainant’s doctor’s prognosis was that
Complainant would not be able to fully perform the duties of the position within six months of
the submission of her bid. On August 9, 2011, S1 informed the Postmaster that Complainant’s
bid assignment “would be disallowed due to her failure to provide medical
certification…indicating that she would be able to fully perform the duties and responsibilities of
the bid-for Sales, Services/Distribution Associate position within six months.”

Complainant continued to work in her limited duty assignment working four hours per day and
receiving OWCP benefits for the hours she did not work. On February 11, 2012, she was
reassigned back to the East Falls Station, where she began working eight hours a day. The
individual who was ultimately awarded the bid position was not working in a modified position
at the time she submitted her bid.

On December 13, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of disability and in reprisal for prior protected EEO
activity when on August 9, 2011, she was told her medical documentation was not acceptable to
be awarded the Sales/Service Associate position (vacancy no. 95409265).
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on January 20, 2015.

In her decision, the AJ initially determined that Complainant failed to establish a prima facie
case of discrimination and reprisal. Further, the AJ assumed arguendo that Complainant had
established a prima facie case of discrimination and reprisal and found that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions. The AJ concluded that
Complainant failed to show that the Agency’s reasons were pretextual. As a result, the AJ found
that Complainant had not been subjected to discrimination or reprisal as alleged. The Agency
subsequently issued a final order fully implementing the AJ’s decision. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the
Agency. Complainant argues that she established a prima facie case of disability discrimination
and reprisal. Complainant claims that she presented numerous inconsistencies and material
differences between what the Agency proffered in support of its actions and the record evidence.
Complainant contends that the Agency misinterpreted her physician’s medical assessment and
ignored his belief that her condition would improve within six months of his July 2011 letter.
Further, Complainant alleges that there is evidence that the Postmaster and other management
officials who were involved in her prior EEO activity were involved in the decision-making
process of disallowing her bid assignment. Finally, Complainant challenges the AJ’s rulings
during discovery, including the denial of her October 22, 2012, Motion to Compel. Accordingly,
Complainant requests that the Commission reverse the final order. The Agency submitted a brief
in opposition to Complainant’s appeal in which it urged the Commission to affirm the AJ’s
decision and its final order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case.

As an initial matter, the Commission will address Complainant’s arguments regarding the AJ’s
handling of discovery and other matters. Complainant claims that a review of the Agency’s
responses to the outstanding discovery requests as addressed in her Motion to Compel and
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subsequent submissions to the AJ show that the Agency should have been compelled to answer
fully and accurately the above-referenced discovery requests. Further, Complainant argues that
the Agency not being compelled to answer the specifically identified discovery requests was
compounded by the AJ’s failure to address the noted deficiencies in the Agency’s responses to
Complainant’s discovery requests.

The Commission notes that Commission regulations and precedent provide AJs with broad
discretion in matters relating to the conduct of a hearing, including discovery orders and
determinations regarding admission or exclusion of evidence or testimony of witnesses. See 29
C.F.R. § 1614.109(e); Equal Employment Opportunity Commission Management Directive 110
for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). The Commission has reviewed
the record and finds no abuse of discretion or other reversible error resulting from the manner in
which the AJ managed and adjudicated this case.

Disparate Treatment

In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies
that its decisions were motivated by Complainant’s disability and there is no direct evidence of
discrimination, the Commission applies the burden-shifting method of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68 (2d Cir. 1999);
Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999). Under this analysis, in order to
establish a prima facie case, Complainant must demonstrate that: (1) she is an “individual with a
disability”; (2) she is “qualified” for the position held or desired; (3) she was subjected to an
adverse employment action; and (4) the circumstances surrounding the adverse action give rise
to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).

To establish a prima facie case of reprisal, Complainant must show that: (1) she engaged in
protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she
was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected
activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No.
01A00340 (Sept. 25, 2000).

The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for the adverse employment action. If the Agency is successful, the burden reverts back
to Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were a pretext for discrimination. At all times, Complainant retains the burden of persuasion,
and it is her obligation to show by a preponderance of the evidence that the Agency acted on the
basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Serv. Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Assuming arguendo that Complainant established a prima facie
case of disability discrimination and reprisal, the Commission finds that Complainant failed to
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present evidence to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions.
More specifically, the record reveals that Complainant was the successful bidder for a Sales and
Service Distribution Associate position advertised under Job ID No. 95409265. Complainant
was informed that pursuant to a Memorandum of Understanding between the union and
management, she needed to submit medical certification from her doctor indicating that she
would be able to “fully perform the duties of the bid-for position within six months of the bid.”
ROI, at 93. On July 26, 2011, Complainant submitted her doctor’s response to the Occupational
Health Services Office which stated:
I have been treating [Complainant] over the related past several years
regarding her work injury with recurring intermittent pain in her back and
lower extremities as a result of lumbar disc herniation. She has been limited in
her return to work with restrictive duties as a result. It is my hope that she will
show improvements in her condition over the coming months (maximum of
six) with conservative management. Eventually, I would like to return
[Complainant] to her normal work activities with minimum adjustments and/or
reasonable accommodations to be made.
ROI, at 87. The Occupational Health Nurse emailed S1 informing him that Complainant’s
doctor stated:
She has been limited in her return to work with restrictive duties as a result. It
is my hope that she will show improvements in her condition over the coming
six months. I would like to return [Complainant] to normal work activities
with minimum adjustments and/or reasonable accommodations to be made.
ROI, at 169. S1 stated that he recommended that Complainant’s bid be disallowed based on
what was conveyed to him by the Occupational Nurse and his interpretation that Complainant
failed to sufficiently demonstrate that she would be able to fully perform the duties of the bid
position within six months. Id. at 115-16, Agency’s Motion for a Decision Without a Hearing,
S1’s Decl. S1 affirmed that all employees must provide sufficient medical certification showing
that they can fully perform all duties of a bid assignment within six months of the bid. Id. S1
stressed that his recommendation was based solely on the response from Complainant’s doctor.
Id. at 116. As a result, on August 9, 2011, the Postmaster informed Complainant that based on
the medical documentation she provided, her bid assignment would be disallowed because the
submitted documentation insufficiently demonstrated that she would be able to perform the full
duties of the bid-for position within six months. Id. at 95.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant’s protected classes were a factor in any of the Agency’s actions.
Complainant’s subjective belief that the management actions at issue were the result of
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discrimination or reprisal is insufficient to prove pretext. At all times, the ultimate burden
remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s
reasons were not the real reasons and that the Agency acted on the basis of discriminatory or
retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds
that Complainant has not established that she was subjected to discrimination or reprisal as
alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final order, because the Equal Employment Opportunity Commission Administrative
Judge’s issuance of summary judgment was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.

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.

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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

July 14, 2017
Date