[Redacted], Katina R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

May 2, 2022

Appeal No. 2021002387 (E.E.O.C. May. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Katina R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002387 Hearing No. 480-2020-00856X Agency No. 1F-927-0045-20 DECISION On March 1, 2021, 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 February 11, 2021 final decision 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Modified Mail Clerk at the Agency’s Anaheim P&DC facility in Anaheim, California. On April 29, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability ( conditions of the elbow, left hand, shoulders and thumb) and reprisal for prior protected EEO activity when, on or about January 14, 2020, she became aware she was not awarded the bid for Job Position 211694, Job ID # 71789282, Tour-1 APBS Clerk. 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. 2021002387 2 The Agency accepted the foregoing claim and conducted an investigation into the matter. The investigation showed that Complainant was working as a Modified Mail Processing Clerk at the Anaheim P&DC. She was working this position under an Offer of Modified Assignment (Limited Duty). The Offer of Modified Assignment assigned Complainant to work 8 hours per day in APBS. The physical requirements of the modified assignment were 8 hours intermittent simple grasping, fine manipulation, and reaching above the shoulder; intermittent climbing, kneeling, bending, stopping, twisting, pushing, and pulling; intermittent (no prolonged) standing or walking/sit down duty only; and intermittent lifting and carrying (5 pounds continuous/40 pounds intermittent). (ROI, p. 132). In early January 2020, Complainant applied for Job Position 211694, Job ID #71789282, referred to by the Agency as Tour 1 APBS Clerk position. The vacancy announcement for this position stated, “Primary work area is APBS. Distribution of parcels, bundles & other mail. Will require prolonged standing, walking within the operation & intermittent lifting up to 70 lbs. Other duties as assigned.” (ROI, p. 134). Complainant was the senior bidder for this position. (ROI, p. 136). As part of the standard pre-award process, the Agency determined whether Complainant was detailed to a non-bargaining unit position (she was not) and whether Complainant was currently working a light or limited duty assignment due to a temporary disability. Since Complainant was working a limited duty assignment, the Agency then asked if Complainant currently had or could produce medical certification indicating that she would be able to fully perform the duties of the bid assignment within six months of the bid. The pre-award notice indicated that Complainant did not, and this was pending documentation and review by the Reasonable Accommodation Committee. (ROI, p. 137). Therefore, the Operation Support Specialist sent Complainant a letter dated November 27, 2019 stating: [Agency] records indicate you are currently unable to perform the full duties for which you bid JOB# 71789282, Posting #211694 -Tour 1 - APBS. If you disagree with this determination, call your Supervisor immediately. Otherwise, in accordance with the Memorandum of Understanding dated September 1, 1987, between the American Postal Worker Union, AFL-CIO and the United States Postal Service, we are requesting that you provide medical documentation as to whether or not you will be able to perform the duties of the bid for the position within 6 months of the posting date. (ROI, p. 138). Complainant timely submitted a Postal Service Form 5P48 completed by her doctor. The form seems to indicate that Complainant could perform the specific job requirements “as required”, including intermittent lifting of 70 pounds, 8 hours of continuous standing, and 6 hours of intermittent walking. However, the form also unequivocally states it is “unknown” when Complainant will be able to perform full work duties, her prognosis is “unknown”, and that she reached maximum medical improvement on October 26, 2016. (ROI, p. 139). 2021002387 3 On January 9, 2020, the Operations Support Specialist notified Complainant by letter that her “submission of medical documentation failed to qualify for the physical requirements of the position for which [Complainant] bid on”. Therefore, her bid was disallowed, and Complainant would remain in her current position. The bid was subsequently awarded to a less senior employee who was not detailed to a non-bargaining unit position and who was not currently working a light or limited duty assignment. Complainant testified this was in retaliation for previously filing a complaint against a Plant Manager in approximately November 2019 related to her disability. She asserts that Plant Manager was selecting official for the vacancy. Complainant testified that her medical condition is a neck injury, bilateral elbow, shoulder, wrist, and hands. She admitted she has reached maximum medical improvement. Complainant further testified all of her supervisors are aware of her medical condition and she has provided medical documentation to the Safety Specialist. Complainant averred that she cannot lift more than 40 pounds, she cannot reach above her head on the LCUS (Manual Priority Racks), including throwing. However, she stated she can perform all duties on the APBS. She further stated that all of the duties in the vacancy position conform to her medical restrictions. Complainant asserts that the employee who was awarded the bid is junior to her, she meets all the requirements, and she should have been awarded the bid. Complainant was unsure whether the employee who was awarded the bid has prior EEO activity, medical conditions, or work restrictions. The Operations Support Specialist testified she was not aware of Complainant’s prior EEO activity. She testified she was not aware of Complainant’s medical conditions until she consulted the Facility Safety Coordinator in order to respond to the questions on the Pre-Award Notice. She stated that when she receives a Pre-Award Notice, she always consults with the Facility Safety Coordinator to respond to the Pre-Award Question about employees being on limited or light duty and that is when she learned of Complainant’s limited duty. She testified that as stated in the job description, the vacancy position will require prolonged standing and walking and intermittent lifting of up to 70 pounds, whereas Complainant’s Offer of Modified Assignment states no prolonged walking or standing, sit down duty only, and lifting and carrying of 40 pounds intermittently. The Operations Support Specialist testified that Complainant was disqualified for this bid because the medical documentation provided by Complainant showed it was unknown when she would be able to perform the full duties of the job and she had reached maximum medical improvement on October 26, 2016. She also noted that Complainant had multiple outstanding workers’ compensation cases, in which case the Agency looks at the most restrictive claim. The claims listed by the Operations Support Specialist reflect a most restrictive lifting limitation of 40 pounds intermittently. She stated Complainant’s prior EEO activity was not a factor in Complainant not being awarded the position, but her medical condition was a factor because Complainant’s medical documentation stated it was unknown when Complainant would be able to perform the full work duties. The Operations Support Specialist further noted that although Complainant’s current position is at the APBS, Complainant is unable to perform all aspects of the position due to her limitations and restrictions as shown in her medical documentation and her Modified Duty Assignment. 2021002387 4 The Facility Safety Coordinator testified she was not aware of Complainant’s EEO activity until June 27, 2020. However, she had been aware since 2018 that Complainant had lifting and carrying restrictions of nothing greater than 40 pounds. The Facility Safety Coordinator testified she has received medical documentation from Complainant which is ongoing due to Complainant having approved workers’ compensation claims. She stated she is not aware of who awarded the bid and that she merely informs the Operations Support Specialist whether employees are on limited or light duty restrictions. She stated she is asked about this for all employees when they bid for jobs and are potentially the successful bidder. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ later dismissed Complainant’s hearing request as sanctions for failure to cooperate. Complainant failed to appear for the Initial Scheduling Conference on January 11, 2021. The AJ then issued an Order for Complainant to Show Cause regarding why she failed to appear for the Initial Scheduling Conference. The Order warned that failure to respond could result in sanctions against her, including the forfeiture of her right to a hearing. Complainant failed to respond to the Order to Show Good Cause. Therefore, on January 29, 2020, the AJ dismissed her hearing request and remanded the complaint to the Agency. 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. Complainant filed the instant appeal. Although the Agency references Complainant’s appeal brief, no such brief was filed with the Commission. The Agency contends on appeal that the FAD finding no discrimination, retaliation, or hostile work environment harassment was appropriate, is supported by the record, and should be upheld. The Agency argues Complainant failed to state a prima facie case for disability discrimination or retaliation, and she failed to offer evidence to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions, nor did she offer any evidence to show pretext. 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”). 2021002387 5 AJ’s Dismissal of Hearing Request as Sanctions The Commission's regulations confer upon its AJs very broad responsibility for adjudicating an EEO complaint once a complainant's hearing request has been granted, and that responsibility gives the AJs wide latitude in directing the terms, conduct, or course of EEO administrative hearings. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). The AJ's discretionary authority includes the power to impose sanctions upon a party that fails to comply with his orders. See 29 C.F.R. § 1614.109(f)(3). Here, on December 28, 2020, the AJ assigned to the case issued an Order Scheduling Initial Conference, setting an initial conference for January 11, 2021 at 10:00 am, Pacific Time. This Order was provided to the parties electronically, to their email addresses of record, along with dial in instructions, the conference code number, and the conference code to join the conference. Complainant failed to appear for the initial conference on January 11, 2021. That same day, the AJ issued Complainant and Order to Show Cause with specific instructions ordering Complainant to file a pleading showing why she had failed to attend the initial conference. This Order further warned Complainant that failure to respond and show good cause could result in sanctions against her, to include the forfeiture of her right to a hearing. Complainant was ordered to file a response no later than January 19, 2021, via the Public Portal. As of January 29, 2021, Complainant has not responded to the AJ’s Order to Show Good Cause. Therefore, he dismissed her hearing request. Under these particular circumstances and without further explanation from Complainant on appeal, we find the AJ’s dismissal of Complainant’s hearing request for her failure to cooperate was not in error. Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2021002387 6 Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). For her claim of reprisal, Complainant must show that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Assuming, arguendo, that Complainant established a prima facie case of disability and reprisal, the responsible Agency officials have articulated legitimate, nondiscriminatory reasons for its actions. Agency policy states that the senior qualified bidder meeting the qualification standards established for the position shall be designated the “successful bidder.” However, based on the medical documentation provided by Complainant, as well as her current job restrictions, she failed to qualify for the physical requirements for this job. Complainant has failed to show this explanation is pretext for discrimination. She offered no argument on appeal. The documentation provided by Complainant’s doctor unequivocally states that it is unknown when Complainant could perform the full duties of the job. Meanwhile, the letter sent to Complainant requesting medical documentation specifically asks for documentation “as to whether or not you will be able to perform the duties of the bid for the position within 6 months of the posting date.” Thus, her medical documentation clearly failed to show she could fully perform the position within 6 months. Additionally, while Complainant testified she could perform the required job duties, she also testified that she cannot lift more than 40 pounds. The vacancy announcement requires intermittent lifting of 70 pounds. The vacancy announcement also requires prolong sitting and standing. Complainant’s current restrictions on her Limited Duty offer state sit down duty only, no prolonged sitting or standing. There is simply no evidence in the record to support that the Agency was motivated by discriminatory animus. Complainant bears the ultimate burden proof and she has failed to show disability discrimination here. As for Complainant’s reprisal claim, the EEO Investigator was unable to find an EEO complaint filed by Complainant against the Plant Manager in approximately November 2019, although Complainant does have other prior EEO activity. However, the evidence does not show the Plant Manager was in any way involved with the bid process for this job. Neither the Operations Support Specialist nor the Facility Safety Coordinator were aware of Complainant’s EEO activity until she filed the instant complaint. Therefore, Complainant has not shown the nexus necessary to prove a prima facie case for reprisal for prior protected EEO activity, and as stated, the Agency has provided legitimate, nondiscriminatory reasons for its actions. 2021002387 7 In this case, there is no evidence of unlawful motivation for the Agency's actions. As such, we find that Complainant did not establish that the Agency discriminated against her based on disability or in reprisal for prior protected EEO activity. Reasonable Accommodation We note that Complainant did not request a reasonable accommodation. Nevertheless, we clarify that the record supports that Complainant was not a qualified individual within the meaning of the Rehabilitation Act. A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. As discussed, Complainant was on limited duty due to work restrictions based on medical documentation. She was asked to provide medical documentation indicating if and when she would be able perform the essential functions of the bid position at issue and she failed to do so. The medical evidence of record does not establish that she would be able to perform those job functions, with or without a reasonable accommodation. Therefore, the record does not support a finding that the Agency violated the Rehabilitation Act. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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 2021002387 8 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 (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. 2021002387 9 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 May 2, 2022 Date