[Redacted], Laura G., 1 Complainant,v.Louis DeJoy Postmaster General, U.S. Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Mar 31, 2022

Appeal No. 2022000098 (E.E.O.C. Mar. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Laura G.,1 Complainant, v. Louis DeJoy Postmaster General, U.S. Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000098 Hearing No. 520-2021-00079X Agency No. 4B-070-0148-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 13, 2021 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 At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician, PS-02, at the Agency’s Post Office in Madison, New Jersey. On May 19, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic/Venezuela), disability (Multiple Sclerosis), and in reprisal for prior protected EEO activity when, on or about March 23, 2020, management would not grant her request to transfer to a different position as a reasonable accommodation. 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. 2022000098 2 On May 15, 2019, Complainant wrote a letter to the District Reasonable Accommodation Committee (DRAC). In the letter, Complainant explained her condition and requested accommodation for her limitations. She cannot work outside. Complainant acknowledged that she could no longer perform the duties of a carrier due to her Multiple Sclerosis condition. On December 26, 2019, Complainant requested a craft transfer as a reasonable accommodation from carrier to a clerk position. The DRAC advised Complainant to use the Agency’s eReassign system to seek clerk craft positions in other facilities, as there was no process to transfer to a different craft within the Madison Post Office and there were no open Clerk positions. After she returned from extended leave, the Agency gave her another detail as an Acting Customer Service Supervisor (204B). On March 23, 2020, the Postmaster returned to the Madison Post Office, which meant the Customer Service Supervisor returned to his position. There was no longer a need for Complainant to be detailed as the Acting Supervisor and her detail ended. She continued to work through March 26, 2020. Complainant took leave and applied for disability retirement, which was subsequently approved six months later in August 2020. 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 a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter granted the Agency’s motion and issued a summary judgment decision finding that Complainant was not subjected to discrimination as alleged. In the decision, regarding Complainant’s denial of reasonable accommodation claim, the AJ first found that Complainant was not a qualified individual with a disability because she could not perform the duties of her carrier position with or without an accommodation. Nonetheless, over the years the Agency took various actions to accommodate Complainant. Complainant met with the DRAC and her managers several times to request accommodations. At first, the Agency granted Complainant’s request for an air-conditioned vehicle. Complainant also applied for and was accepted into a position on the Route Inspection Team from September 2018 until she took leave for unrelated health reasons. When she returned from her leave, in June 2019, she was given another detail as a 204B Supervisor which continued through March 2020. Complainant was offered an opportunity to serve as a 204B on the weekends when the Postmaster returned, but she rejected that offer. Complainant was also offered the opportunity to work her own job as a carrier inside the station with reduced hours. Complainant insisted, instead, that the Agency reassign her to a clerk craft position in the Madison facility as an accommodation. The Agency stated it could not reassign her into a clerk craft position because there were no vacant, funded positions available and because it would violate the collective bargaining agreement. Instead, the Agency encouraged Complainant to seek positions through the eReassign system. There is no evidence indicating that she sought a reassignment that way and, instead, she was approved for disability retirement. The AJ found that Complainant failed to show that the offered and granted accommodations were ineffective. 2022000098 3 Further, the AJ noted that the Agency was under no obligation to offer Complainant the accommodation of her choice. As a result, the AJ found that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. Next, the AJ found that Complainant failed to show that the Agency’s reasons for its actions were pretext for unlawful discrimination or reprisal. As a result, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the AJ’s decision considered only the Agency’s facts and arguments which resulted in a distorted opinion with an unsound factual basis. Complainant contends that she established a prima facie case of discrimination and reprisal and that the Agency failed to engage in the interactive process with her. Complainant argues that she has shown that the Agency discriminated and retaliated against her. Accordingly, Complainant requests that the Commission reverse the final order. 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. Here, however, Complainant 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. 2022000098 4 Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, for the reasons stated here, 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. 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). 2022000098 5 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 March 31, 2022 Date