[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. 2020004647 (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. 2020004647 Hearing No. 450-2017-00059X Agency No. 1G-754-0034-16 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., 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 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 first-level supervisors were Distribution Operations Supervisors S1 and S2. On March 15, 2016, Complainant filed a complaint alleging discrimination based on race (Black), disability (shoulder), and retaliation when: 1. on February 1, 2016, she was made to work outside her medical restrictions; 2. on dates to be specified in February 2016 and continuing, she was not paid; 3. from June 26, 2016, until 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. 2020004647 2 date to be specified, her schedule was changed daily; 4. on dates to be specified around June and July 2016, she was made to work outside her medical restrictions; and 5. on dates to be specified in June and July 2016, she was not paid correctly. 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 or harassment as alleged. The instant appeal followed. With regard to claim 1, Complainant alleged that on February 1, 2016, S1 and a manager, A1, told her to stop working in the Postal Automated Redirection System (PARS) and to return to her bid job on the Small Parcel Bundle Sorter (SPBS). She alleged that this violated her pushing and pulling restrictions. The record indicates that Complainant was offered a modified assignment on December 22, 2015, as part of her Office of Workers’ Compensation (OWCP) claim. The offer involved working for eight hours at the Automated Parcel and Bundle Sorter (APBS), which is an upgraded SPBS. The full duties of Complainant’s bid position required her to push or pull up to 35 pounds for seven hours per day. Complainant’s restrictions, however, only allowed her to push or pull for two hours per day. Therefore, her modified assignment that she accepted involved only one to two hours of pushing or pulling containers on an intermittent basis. According to management, she was never asked to work outside of her restrictions. Regarding claim 2, Complainant stated that she was denied Continuation of Pay (COP) for her OWCP claim. Complainant submitted the paperwork for COP on February 18, 2016, for an injury that occurred on February 17th. The paperwork indicated that it was for a shoulder injury. S2 stated that he mistakenly challenged Complainant’s claim because he thought it was an extension of a previous OWCP claim and not a new OWCP claim. S3, another supervisor, stated that he recommended that Complainant use annual leave or sick leave when informed the claim had been denied until the matter was reviewed again and accepted. Subsequently, Complainant’s claim was accepted as a new claim by the Department of Labor on March 24, 2016. S3 submitted a pay adjustment to change Complainant’s pay to COP for February 13th to April 1st on April 25, 2016. With regard to claim 3, Complainant was out of the office from February 18, 2016 to June 27, 2016, on extended leave. While out, she received a notice of reassignment on March 7, 2016, which indicated that her new schedule was 6:30 p.m. to 3:00 a.m. According to Complainant, when she reported to work at 2:30 p.m. on June 27, 2016, she was instructed to come to work at 4:30 p.m. on June 28th. She was then instructed to come to work at 6:30 p.m. on June 29th. Prior to going on leave, her schedule was 4:30 pm to 1:00 am. Regarding claim 4, Complainant stated that she was worked outside her restrictions from July 8, 2016 through July 15, 2016. She alleged that working on the SPSS machine was outside of her restrictions. 2020004647 3 The record indicates that Complainant was offered a modified assignment on June 29, 2016, which she signed and accepted on July 6, 2016. The physical requirements of Complainant’s assignment fell within the restrictions on her CA-17. At this time, Complainant was supervised by S4. She stated that Complainant’s race, disability, and prior EEO activity were not factors in her actions. S3 stated that Complainant told him that she was working outside her restrictions but that her modified assignment was within those restrictions. According to S3, he told Complainant to self- monitor and make sure that she was not working outside her restrictions. He stated that Complainant’s race, disability, and prior EEO activity were not factors in his actions. With regard to claim 5, Complainant stated that she worked eight days in a row from July 5, 2016 through July 12, 2016, but was only paid straight time for the extra days that she worked, not overtime. The record indicates that, prior to her new modified assignment on July 6, 2016, Complainant’s scheduled days off were Saturday and Sunday. After her new assignment, her off days became Wednesdays and Thursdays. According to management, Complainant accidentally worked July 6 - 7th. When she reported to work, her supervisor was not aware it was her day off. Therefore, it was a mistake on the Agency’s part. The AJ agreed with the Agency’s determination that claims 1, 2, and 4 involved an improper attempt by Complainant to use the EEO process to collaterally attack the workers' compensation process, and that these claims should be dismissed for failing to state a claim. Specifically, the AJ noted that, with respect to claim 1, Complainant was given a modified work assignment on December 22, 2015, as part of her OWCP claim related to her shoulder injury. The AJ found that the record supported the Agency's position that it did not require Complainant to perform tasks that conflicted with her medical restrictions because she was tasked with pushing and pulling containers from the SPBS no more than two hours per day. The AJ agreed that any challenge Complainant had with her new work assignment should have been handled through the OWCP process. Therefore, there was no violation of her restrictions when Complainant was ordered to leave the PARS and to return to her modified assignment. Regarding claim 2, the AJ found that if Complainant took issue with management’s unwillingness to grant her COP because of its belief that her request for this pay was in conjunction with her previous injury claim, she was required to followed up with OWCP to resolve the matter. The AJ also found that even if a fact finder concluded that Complainant’s denial of COP was not collateral in nature, there was no evidence that she was harmed by management's misunderstanding of her February 18, 2016, submission to OWCP. Regarding claim 4, the AJ noted that Complainant was offered another modified work assignment on June 29, 2016. Her new workplace restrictions included no lifting over 25 pounds and no pushing or pulling for more than one hour per day. The AJ found that the duties Complainant was performing were consistent with her modified assignment, which she accepted, and did not conflict with her work restrictions. The AJ again agreed with the Agency’s assertion that any challenge Complainant had with her new work assignment should have been handled through the OWCP process. 2020004647 4 With regard to claim 3, the AJ found that Complainant never objected to her revised work schedule when she was informed in March 2016, and that her start time was only inconsistent during the first two days after she returned to work following an extended leave of absence. Complainant, the AJ found, failed to describe how the inconsistent work schedule for two days was an adverse employment action. The AJ also found no facts connecting Complainant’s disability, race, or prior EEO activity to this matter. Regarding claim 5, the AJ found that the evidence indicated that Complainant accidentally was allowed to work on July 6 and 7 (Wednesday and Thursday) since her modified schedule was new to her and her supervisors; there was no evidence that any member of management compelled Complainant to work on her new days off; and Complainant failed to provide facts connecting her race, disability, or previous EEO activity to this matters. Finally, the AJ found no evidence Complainant was subjected to a hostile work environment regarding the above matters. 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…â€); 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. 2020004647 5 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.2 Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2 Notwithstanding the AJ’s determination that claims 1, 2, and 4 should be dismissed on the grounds that Complainant failed to state a claim because these matters represented a collateral attack on the OWCP process, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions and that Complainant failed to provide or identify evidence which raised a genuine issue of material fact of pretext. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Furthermore, to the extent that Complainant is alleging she was denied a reasonable accommodation, there is no Rehabilitation Act violation because there is no evidence that Complainant worked beyond her medical restrictions. 2020004647 6 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. 2020004647 7 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