[Redacted], Coraline P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jan 14, 2021

Appeal No. 2020000621 (E.E.O.C. Jan. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Coraline P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000621 Hearing No. 450-2015-00244X Agency No. 4G-752-0062-15 DECISION On September 9, 2019, 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 August 8, 2019 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., 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, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier, R-00, at the Agency’s Post Office in Cedar Hill, Texas. Complainant sustained a back injury in January 2014 when she was involved in a motor vehicle accident while delivering mail. As a result, Complainant has medical restrictions that prevent her from driving a postal vehicle and lifting more than 25 pounds. Following her return to work, Complainant was placed on a detail as an acting supervisor. She was able to perform the duties of that position within her medical 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. 2020000621 2 restrictions. In December 2014, Complainant’s supervisor ended Complainant’s detail. For some months thereafter, Complainant, while remaining in paid status, had no assigned duties pending resolution of her workers’ compensation claim. On March 23, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability (injury left side body), age (46), and in reprisal for prior protected EEO activity when: 1. on December 10, 2014, she was taken off her acting supervisor detail; and 2. on December 10, 2014, her accommodation was revoked, she was segregated from others and made to sit in the breakroom for eight hours per day. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on May 21, 2019. The AJ issued a decision on July 23, 2019, finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. 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. Claim 1 (Removed from Acting Supervisor Detail) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 2020000621 3 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995). Here, the Agency explains that Complainant was removed from her acting supervisor detail because of a series of confrontations Complainant had with employees under her supervision, during which Complainant made inappropriate comments. Hearing Transcript at 234-239, 275. The AJ found that this is a legitimate, nondiscriminatory reason for the Agency’s action. The AJ also found that Complainant had failed to establish by a preponderance of the evidence that the Agency’s explanation was a pretext for discrimination. The only evidence of pretext was Complainant’s testimony reflecting her own subjective beliefs. We find that the AJ’s decision was correct and supported by substantial evidence. Claim 2 (Denied Reasonable Accommodation) Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an “individual with a disability,” as defined by 29 C.F.R. §1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. §1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). Here, Complainant contends that the Agency improperly denied her a reasonable accommodation when it terminated her acting supervisor detail and assigned to her to sit in the breakroom, “segregated” from her coworkers and without productive work to perform. She argues that she should have been reassigned to another position in which her medical restrictions could have been accommodated. According to the Agency, Complainant was temporarily assigned to the break room following the end of her detail while her workers’ compensation claim was being resolved. During that period, again according to the Agency, there were no vacant Carrier craft positions to which Complainant could have been reassigned. In the instant case, the AJ correctly concluded that Complainant failed to show that the Agency was wrong on this point. A complainant seeking a reassignment as a reasonable accommodation has the burden of establishing a likelihood that there was work available or there was otherwise a vacant, funded position into which she could have been reassigned anywhere at the Agency at the relevant time. See Complainant v. Social Sec. Admin., EEOC Appeal No. 0120180037 (Apr. 17, 2019) (complainant failed to meet her evidentiary burden establishing that there were vacancies during the relevant time period into which she could have been reassigned). See also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, Notice No. 915.002 (rev. Oct. 17, 2002); Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. Part 1630, at § 1630.2(o). 2020000621 4 Without evidence of the existence of a vacant funded position at the relevant time, the Agency cannot be held liable for failure to provide a reassignment. Accordingly, the Commission finds that substantial record evidence supports that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we affirm the Agency’s final order fully implementing the AJ’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020000621 5 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 January 14, 2021 Date