[Redacted], Erline S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Jun 23, 2021

Appeal No. 2020000375 (E.E.O.C. Jun. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erline S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020000375 Hearing No. 480-2016-00889X Agency No. 4F-926-0234-15 DECISION On September 23, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 22, 2019 final action concerning an equal employment opportunity (EEO) complaint claiming 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. During the relevant time, Complainant was a Distribution Clerk at the Agency’s La Habra, California Post Office. On March 21, 2014, Complainant experienced pain in her left arm at work and experienced what she believed was a stroke. Subsequently, Complainant presented her supervisor with doctor’s notes placing her off-work until at least April 21, 2014. However, she ended up being off work for much longer. During the time Complainant was off from work, she requested light duty, which management denied because it found no work within her medical restrictions. At that time, Complainant was unable to use her left arm and shoulder or reach above her shoulder. 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. 2020000375 2 Complainant filed a claim with the Department of Labor’s Office of Workers’ Compensation Programs (OWCP), and in September 2014, OWCP accepted Complainant’s injury claim with an incident date of March 21, 2014. In October 2014, OWCP determined that Complainant was entitled to compensation beginning June 26, 2014. The Agency subsequently offered Complainant a modified window clerk position, which Complainant accepted under protest until her retirement in September 2015. On October 21, 2015, Complainant, filed an EEO formal complaint. Therein, Complainant claimed that the Agency discriminated against her based on disability,2 age (born January 1964), and in reprisal for protected EEO activity (prior activity which Complainant indicated ‘too much to list’) when she was forced to retire after she was denied reasonable accommodation and not paid properly for work performed from April 1, 2015 through September 9, 2015. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On December 24, 2015, the hearing process was placed on abeyance by the EEOC AJ, while the Merit Systems Protection Board (MSPB or the Board) ruled on the issue of jurisdiction for an MSPB appeal in which Complainant had alleged that the Agency denied her restoration of employment following the on-the-job injury. On September 4, 2015, an MSPB Administrative Judge (AJ) issued an Initial Decision granting the Agency's motion to dismiss Complainant's appeal for lack of jurisdiction. Specifically, the decision found that Complainant was unable to establish by preponderant evidence that: (1) she was absent from her position due to a compensable injury; (2) she recovered sufficiently to return to duty on a part-time basis or to return to work in a position with less demanding physical requirements; (3) that the Agency denied her request for restoration; and (4) that the denial was arbitrary and capricious because of the agency's failure to perform its obligations under 5 C.F.R. S 353.301(d). On March 1, 2016, the full Board issued a final order affirming the Initial Decision. The Board noted Complainant’s injury history and pursuit of the matter through OWCP, including that OWCP determined that Complainant was entitled to compensation beginning June 26, 2014. The MSPB noted that the Agency subsequently offered Complainant a modified window clerk position, which Complainant accepted under protest. On April 8, 2016, the Commission denied Complainant’s Petition for Review of the MSPB’s March 2016 decision to dismiss the MSPB appeal for lack of jurisdiction. EEOC Petition No. 0320160029 (April 8, 2016). 2 Complainant identified her disability as cervical radiculopathy thoracic. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2020000375 3 Following the MSPB determination, on August 16, 2019, the EEOC AJ in the instant case issued a decision by summary judgment in favor of the Agency, finding no discrimination or unlawful retaliation. On the issue of reasonable accommodation, the EEOC AJ provided extensive discussion on the MSPB’s findings, which included the following salient matters. Complainant had been absent from her position due to a compensable injury as of the date that OWCP accepted her claim. By September 18, 2014, Complainant had recovered sufficiently to return to duty either on a part- time basis, or in a position with less demanding physical requirements than previously required. On September 30, 2014, Complainant met with the management of the La Habra Post Office to submit a CA-17 duty status report and to discuss with the Officer in Charge available jobs. On October 7, 2014, Complainant’s supervisor informed her of a limited duty job offer, which Complainant accepted under protest, and started on October 11, 2014. The EEOC AJ noted that the MSPB ultimately found that the Agency did not have a regular position available within Complainant’s “significant medical restrictions.” The limited-duty assignment, which Complainant accepted, did not require her to work outside of her medical restrictions. On the issue of pay discrimination, the EEOC AJ found that the claim was similarly refuted by evidence of record. The AJ noted that from April 1 through April 30, 2015, Complainant was paid for 26 days; that from May 1 through May 29, 2015, she was paid for 25 days; from June 1 through June 30, 2015, she was paid for 25 days; from July 1 through July 31, 2015, she was paid for 28 days, from August 1 through August 31, 2015, she was paid for 26 days; and that from September 1 through September 9, 2015, she was paid for 8 days. The EEOC AJ concluded that Complainant was precluded from re-litigating the issues and disputing the findings of the MSPB, which established that she was provided a limited duty job as an accommodation to her medical restriction from October 2014, when she was released to return to work, up to her retirement in September 2015. Moreover, the AJ found that there was no admissible evidence of denial of “proper” pay so as to render her retirement involuntary. The Agency issued its final action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2020000375 4 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the EEOC AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the EEOC AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. We AFFIRM the Agency’s final action adopting the EEOC AJ’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 2020000375 5 In the absence of a legible postmark, a 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. 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. 2020000375 6 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 June 23, 2021 Date