[Redacted], Kathleen P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 2, 2021Appeal No. 2020004646 (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 Kathleen P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004646 Hearing No. 450-2016-00169X Agency No. 1G-754-0099-15 DECISION 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 May 26, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the time at issue, Complainant was a Parcel Post Distribution-Machine Clerk at the North Texas Processing and Distribution Center in Dallas, Texas. Her immediate supervisor was S1. On November 3, 2015, she filed a complaint alleging discrimination based on retaliation (prior EEO activity) when: 1. on or around September 23, 2015, she was made to work outside her medical restrictions; 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. 2020004646 2 2. on October 8, 2015, her supervisor told her, “No overtime,” but her coworkers were allowed to work overtime; and 3. On a date to be specified, around October/November 2015, her change of schedule was revoked. After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination and harassment as alleged. The instant appeal followed. Although Complainant did not allege a violation of the Rehabilitation Act, the AJ analyzed claim 1 as a denial of a reasonable accommodation claim in addition to determining whether Complainant was subjected to retaliation. The AJ noted Complainant’s contention that S1 discriminated against her when she forced Complainant to work in conflict with her medical restriction on September 23, 2015, when S1 instructed her to pull priority mail bags weighing more than 35 pounds. According to Complainant, S1 assigned her this task despite Complainant informing her that she was unable to pull priority bags because of her lifting restriction. Complainant maintained that S1 rejected her concerns and directed her to alternate pulling priority bags and sweeping mail every 30 minutes. Complainant stated that this work assignment exacerbated an existing shoulder injury. S1 stated that she was not aware of Complainant’s lifting restriction on September 23, 2015. The AJ found that the documentary evidence supported S1’s testimony, including two CA-17 Duty Status reports, dated September 25, 2015, and October 14, 2015. The AJ noted that there was no evidence that Complainant presented any written restrictions to S1 on September 23, 2015, that reflected a restriction that would have prevented her from pulling priority bags.2 Even if S1 was on notice of Complainant’s no more than 35-pound lifting restriction on September 23, 2015, the AJ, citing Commission precedent, found that such a restriction was not substantially limiting; and therefore, Complainant was not entitled to a reasonable accommodation. Because Complainant failed to provide documentation confirming the existence of any physician imposed medical restrictions and did not have a disabling impairment at the time S1 instructed her to pull priority mail bags, the AJ found that her denial of accommodation claim failed as a matter of law. Moreover, the AJ found that even if Complainant establish a prima facie cases of reprisal discrimination, the Agency provided a legitimate, nondiscriminatory reason for its actions, i.e., S1 was not aware of her lifting restrictions of no more than 35-pounds on September 23, 2015, and Complainant did not establish pretext.3 2 We note, however, that requests for reasonable accommodations are not required to be in writing. 3 The record contains an undated and unsworn statement from S2, another supervisor. According to S2, he had recently seen a doctor’s note imposing restrictions on Complainant’s ability to lift. Consequently, on May 7, 2015, he advised S1 to assign Complainant to a location that did not 2020004646 3 Regarding claim 2, Complainant alleged that she was retaliated against when she was denied an opportunity to work overtime. According to Complainant, on October 8, 2015, she asked A1, then the Acting Supervisor, Attendance Control Office, to work overtime on October 8, 2015. According to Complainant, A1, who was not her supervisor stated that she would ask A2, Manager. Subsequently, Complainant stated that A1 told her A2 denied her request. According to Complainant, she was never provided an explanation for the denial. Both A1 and A2, however, denied playing any role in the denial of Complainant’s request for overtime. According to A1, it was the immediate supervisor’s responsibility to assign overtime. A2 stated that overtime is assigned on an as needed basis and is called by seniority from the Overtime Desired List. Among other determinations, the AJ found that Complainant did not establish a prima facie case of reprisal discrimination, in part, because she did not establish a causal nexus between the denial of the opportunity to work overtime on October 8, 2015, and the EEO complaints that she filed between January and May 2015, in June 2014, and in 2008. Specifically, the AJ found that: [i]n this case, Complainant’s EEO complaints were filed between five months and seven years before the denial of overtime work. Without a causal connection established linking her EEO activity to her discrimination allegation, Complainant can only rely upon speculation and belief to prove that her prior EEO filings resulted in the denial of overtime work. Regarding claim 3, Complainant alleged that the Agency retaliated against her when a change in her work schedule was revoked. According to Complainant, A1 changed her schedule to allow her to work in the scanner room beginning on October 26, 2015. Complainant maintains that her scanning duties were scheduled to terminate on November 27, 2015, but that one week into her new schedule, she was returned to her old schedule. Complainant maintained that when A3, Manager, Distribution Operations, discovered the change in schedule, she ordered A1 to send Complainant back to her regular schedule. In a letter dated November 25, 2015, A4, the District Manager, wrote Complainant’s Congresswoman in response to an inquiry. In the letter, A4 indicated that: This correspondence is in response to your letter dated November 12, 2015, on behalf of your constituent, [Complainant], an injured employee who requested a Change of Schedule for personal convenience. Changes of Schedules are granted by management on an as-needed-basis and at their discretion. At the time, management agreed to accommodate her request. However, due to the needs of the service, they determined that based on her restrictions, she could work within her require overhead lifting. We do not find that S2’s statement about his May 2015, conversation with S1 indicates a genuine issue of material fact in dispute about S1’s knowledge of Complainant’s inability to pull priority bags weighing 35 or more pounds in September 2015. According to S2’s statement, his concern was about assigning Complainant to duties requiring overhead lifting. 2020004646 4 bid assignment. This was the sole criteria used to determine whether or not to return [Complainant] to her bid assignment. It has been determined that since her manager agreed to the Change of Schedule, it will be honored until it ends on November 27, 2015. The AJ found that even if Complainant was successful in establishing a prima face case of reprisal, she did not produced evidence showing that the Agency’s legitimate, nondiscriminatory reason for its action, as noted above, was a pretext for discrimination. 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. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, including 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. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 2020004646 5 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). 2020004646 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