[Redacted], Jean M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 2, 2021Appeal No. 2020004306 (E.E.O.C. Feb. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jean M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020004306 Hearing No. 471-2017-00024X Agency No. 4J-481-0111-16 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s May 14, 2020, final order concerning her equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to her complaint, Complainant was employed by the Agency as a Carrier Technician at the Westland Post Office in Westland, Michigan. Her immediate supervisor was S1. A1 was the Postmaster. A2 was the Manager, Health and Human Resources for the Detroit District. On August 3, 2016, Complainant filed a formal complaint alleging that she was discriminated against based on race (Black), disability (bulging and herniated disc in her back), and retaliation (prior EEO activity), when: (1) from January 11, 2016, and continuing, her medical restrictions were not accommodated; and (2) beginning on or about July 23, 2016, she has been denied overtime. 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. 2020004306 2 After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. Subsequently, the Agency submitted a motion for a decision without a hearing, which was opposed by Complainant. The AJ subsequently issued a decision by summary judgment in favor of the Agency. Specifically, the AJ found that Complainant was not subjected to discrimination with regard to any of her alleged bases. The instant appeal followed. The AJ found the following facts to be undisputed: Complainant first injured her back in 2009 due to an on the job injury. Complainant engaged in EEO activity in June 2005 and February 2014. These matters were closed without the filing of formal EEO complaints in September 2005 and April 2014, respectively. The management officials involved in the instant complaint were not involved in her prior EEO complaints. As a Carrier Technician, Complainant acts as the principal carrier for a designated group of not less than five letter routes and delivers mail on foot or by vehicle on the routes during the absence of the regularly assigned carrier. The physical requirements for a Carrier Technician are that they “must be physically able to perform efficiently the duties of the position.” The essential functions of the Carrier Technician position include constantly delivering and collecting mail while standing and walking, occasionally casing mail in sequence of delivery and driving, and intermittently loading, and unloading containers of mail. In September 2014, Complainant reinjured her back (sprained lumbar region), which was accepted as a compensable injury by the Office of Workers’ Compensation Program (OWCP). Complainant worked light duty with full pay until May 12, 2016. In March 2016, A1 spoke to Complainant about her restrictions and whether there was any improvement in her medical condition. Complainant told him that her condition was permanent because she was not going to have surgery. Thereafter, A1 referred her to the District Reasonable Accommodation Committee (DRAC) to find work for her within her restrictions. A3, was the Chair of the DRAC. On April 1, 2016, the DRAC began considering Complainant’s restrictions. At that time, Complainant submitted medical documentation, dated April 1, 2016, that provided the following restrictions: “No pulling, pushing more than 20 [pounds], no delivery more than 2 hours, no walking, no lifting more than 10 pounds.” On April 20, 2016, the DRAC held a meeting with Complainant, her union representative, A1, A3, and other Agency officials from various departments such as Labor Relations, Health and Resource Management, and Occupational Health. During the meeting, management and Complainant discussed her job duties, her restrictions, and what accommodations were necessary for her to perform the essential functions of her position. The DRAC determined that her restrictions prevented her from “perform[ing] many or all of the essential functions of [her] current position,” and neither Complainant nor the DRAC could identify an effective accommodation. Following the DRAC meeting, A1 consulted with A3 and medical personnel regarding his concerns with Complainant's restrictions, especially the no walking restriction, which he stated he was not aware of until the meeting. He maintained that he felt that she perhaps could not work safely within her restrictions. 2020004306 3 On May 10, 2016, after reviewing the medical documentation, an Occupational Health Nurse with the Detroit District, recommended that A1 not work Complainant due to her restriction of no walking. A1 requested clarifying medical documentation from Complainant concerning her current restrictions.2 On or about May 12, 2016, Complainant submitted updated medical documentation, listing her restrictions as follows: “Delivering of mounted and cluster boxes of no more than 2 hours, no lifting more than 10 pounds, no pushing or pulling over 20 pounds, standing and bending as tolerated, no continuous walking of no more than 10 minutes.” On June 21, 2016, Complainant submitted another medical document, listing her restrictions as: “No house to house walking on the walking routes, carrying 2 hours of mounted, no lifting more than 10 pounds, no pushing or pulling more than 20 pounds.” A1 consulted with A2 and was advised to return Complainant to duty because there had not been a significant change in her restrictions. Complainant returned to duty on July 23, 2016, and was given whatever work was available within her restrictions, including “collections, express, casing routes, and two hours of mounted.” When no work was available, management sent her home and OWCP benefits covered any lost wages. The AJ found that the Agency properly handled Complainant’s accommodation request. Specifically, the AJ found that Complainant was not a qualified individual with a disability because she was not capable of house to house walking on walking routes or carrying more than two hours of mounted deliveries or collections. The AJ found that because of these restrictions no reasonable factfinder could find that she was qualified to be a Carrier Technician, with or without an accommodation, and that there was no effective means available to accommodate Complainant in the position she held. The AJ also noted the Agency’s obligation to search for a vacant, funded position for which Complainant was qualified to be reassigned. The AJ noted that it was undisputed that the DRAC participants could not identify any reasonable accommodations, or vacant funded positions, that Complainant could perform within her medical restrictions. The AJ also noted that Complainant did not indicate that she could identified any such vacancies. Finally, the AJ noted that for years the Agency, although having no obligation to do so, provided Complainant with tasks to perform within her restrictions to keep her employed, albeit not as a Carrier Technician. The AJ found that this was an effective accommodation. With respect to claim 2, the AJ found that Complainant failed to identify any overtime opportunities for which she was able to perform the work that needed to be accomplished. According to the AJ, “It is not enough for Complainant to state, as she does, that ‘she’s available to perform overtime duties on her regularly scheduled day off.’ Complainant must demonstrate that there was actually overtime duties available on her day off that would fit within her medical restrictions; an agency is not required to create limited duty work simply to allow [employees with restrictions] the opportunity to work overtime.” S1 stated although she “piece[d] together things” to give Complainant eight hours of work, there was no overtime work within her restrictions. 2 According to Complainant, she was off work from May 13, 2016 until July 23, 2016. 2020004306 4 The AJ further noted that Complainant only identified a single instance on which overtime was denied where she could have worked. That single instance occurred on August 15, 2016, when C1 was allegedly given overtime instead of Complainant. The AJ noted, however, that C1 and Complainant were not true comparators unless Complainant provided additional facts about the work performed by C1. Complainant, the AJ noted, by her own admission had very limited abilities to deliver the mail and performed a collection of tasks and not the tasks of a Carrier Technician on a fulltime basis. According to the AJ, Complainant did not set forth any evidence that the overtime work which was given to C1 fit within the limits that applied to her rather than the full scope of Carrier Technician duties which C1 could perform. 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. 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). In order 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 AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.3 3 On appeal, Complainant notes that the AJ did not address her contention that, in January 2016, she was denied an accommodation when she was sent home five hours early and, therefore, lost five hours of pay when S1 told her that her truck was needed by other carriers to make deliveries. Although the AJ did not specifically address this matter, we find that his analysis that Complainant was not entitled to a reasonable accommodation because she did not establish that she was a qualified individual with a disability would apply here as well. 2020004306 5 CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the 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. 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). 2020004306 6 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 February 2, 2021 Date Copy with citationCopy as parenthetical citation