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

Equal Employment Opportunity Commission

Jul 22, 2021

Appeal No. 2020002448 (E.E.O.C. Jul. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hae T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020002448 Agency No. 4G-350-0115-19 DECISION On February 6, 2020, 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 January 6, 2020, 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. For the following reasons, the Commission VACATES the Agency’s final decision. ISSUES PRESENTED The issue presented is whether the preponderance of the evidence demonstrates that Complainant was subjected to discrimination when the Agency did not grant her request for accommodation. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Services at the Agency’s Florence, Alabama Post Office in Florence, Alabama. Complainant reported she has Generalized Anxiety Disorder, Major Depressive Disorder, and a physical disability related to her left foot/ankle. On February 1, 2019, Complainant requested a 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. 2020002448 2 downgrade to the Mail Handler craft, two-day weekends, and a relocation to Birmingham as reasonable accommodation for her conditions. In support, Complainant provided documentation from her treatment provider stating that Complainant would perform best in non-management positions. On March 28, 2019, the Agency’s District Reasonable Accommodation Committee (DRAC) informed Complainant that her request for accommodation was denied. The letter stated that Complainant agreed that there were no reasonable accommodations that would allow her to perform the essential functions of her position. According to the Agency, collective bargaining agreements govern how craft positions are filled and research into those positions did not result in finding a vacancy. On April 5, 2019, Complainant appealed the denial and provided a letter from her treating provider stating that Complainant was not incapable of performing her job requirements, however, the cumulative effects of her commute, the stress of managing difficult employees, and her physical health conditions resulted in impaired mental health and difficulty dealing with stress. The Agency followed up with Complainant in April and May 2019, upholding the denial of the reasonable accommodation and requesting documentation from her treatment providers confirming that Complainant was released to return to her supervisory duties. On July 16, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (mental and physical) when: on March 28, 2019, she was denied a reasonable accommodation when her request for a voluntary downgrade was not granted and she was placed off the clock in involuntary non-pay status. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the 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. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Agency only performed a search for positions within 50 miles of her duty station. Complainant contends that positions were available and questions why, in the alternative, she could not return to her prior position. The Agency has not responded to Complainant's brief on appeal. 2020002448 3 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Following a review of the record, we find that Complainant did not show that she could perform the essential functions of the Supervisor, Customer Service position. Specifically, Complainant’s treatment providers indicated that she required a non-management role. Therefore, we find that Complainant did not establish that she was a qualified individual with a disability within the meaning of the Rehabilitation Act with respect to her own Supervisor, Customer Services position because the preponderance of the evidence shows that she could not perform the essential functions of that position with or without accommodation. As such, the Agency was not required to accommodate Complainant in the position. However, the discussion of “qualified” does not end at Complainant's position of record. The term “qualified individual with a disability,” with respect to employment, is defined as a person with a disability who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term “position” is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is “qualified,” an agency must look beyond the position which the employee presently encumbers. Enforcement Guidance on Reasonable Accommodation; see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix, to 29 C.F.R. Part 1630.2(o). While the Agency does state it did a search for a vacant funded position for Complainant, the Agency has not provided any specific explanation or evidence in the record as to what extent its search was actually conducted. Cole M. v. U.S. Postal Serv., EEOC Appeal No. 0120182273 (Feb. 26, 2020) (finding that while the agency may have explored alternatives for complainant, it did not provide an explanation in the record as to what extent the agency conducted a search for a vacant, funded position to which it could have reassigned complainant). The DRAC informed Complainant that it reviewed whether there were other positions within a 50-mile radius of her current facility, which could have accommodated her medical restrictions. While the Agency may have conducted a search within a 50-mile radius of Complainant's duty station, the Agency's obligation under the Rehabilitation Act to offer a reassignment is not limited to vacancies within a particular department, facility, or geographical area. Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). 2020002448 4 Absent undue hardship, the Agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation. Julius C. v. Dep’t of the Air Force, EEOC Appeal No. 0120151295 (June 16, 2017). Accordingly, we will remand this matter for a supplemental investigation regarding the availability of a vacant, funded position(s) and to provide Complainant with an opportunity to address whether she could perform the essential functions of any such vacant, funded position(s) with or without a reasonable accommodation. Bill A., supra. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND this matter to the Agency for further processing in accordance with the Order herein. ORDER Within sixty (60) calendar days of the date this decision is issued the Agency shall conduct a supplemental investigation into this complaint as follows: 1) The Agency shall supplement the record with documentation, including sworn statements, that reveals whether there were vacant positions to which Complainant was qualified to be reassigned and to what extent the Agency conducted a search for an equivalent vacant position to which it could have reassigned Complainant at the time she sought her accommodation. 2) The Agency shall grant Complainant an opportunity to address for the record whether she could have performed the essential functions of vacant positions with or without reasonable accommodation. The Agency shall instruct the investigator to compile the above information into an investigative report and transmit it to the Agency within ninety (90) calendar days of the date this decision is issued. No later than thirty (30) calendar days after receiving the report, the Agency will provide Complainant with a copy of the report, and also provide a copy to the Compliance Officer referenced below. Upon completion of the investigative report and receipt by Complainant, the Agency shall again provide Complainant with the opportunity to request a hearing before an Administrative Judge or have the Agency issue a final decision in accordance with 29 C.F.R. § 1614.108(f). The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020002448 5 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020002448 6 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, 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 2020002448 7 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 22, 2021 Date