[Redacted], Lenard T., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2020005306 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenard T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020005306 Hearing No. 430-2017-00148X Agency No. 4K-230-0177-16 DECISION On September 21, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 11, 2020 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Carrier Technician at the Agency’s Petersburg Post Office in Petersburg, Virginia. On September 9, 2016, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on disability (work-related injury) when: 1. on June 17, 2016 and July 7, 2016, his request for reasonable accommodation was denied; and 2. on July 6, 2016, he declined a two (2) hour per day custodial position as an offer of 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. 2 2020005306 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed its Motion for Summary Judgment. On September 8, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its September 11, 2020 final action, the Agency adopted the AJ’s decision. The instant appeal followed. 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). 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 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. Complainant worked as a Carrier Technician at the Post Office in Petersburg, Virginia, since November 2013. During the relevant period, Complainant was diagnosed with several medical conditions, at least in part, related to a work injury.2 As a result, Complainant was medically restricted to sedentary work only and could not perform the functions of his carrier position. From April 27, 2016 to July 7, 2016, the Agency provided Complainant with a temporary accommodation by allowing him to perform non-carrier duties at the Petersburg Post Office consisting of answering the phones and assisting customers at the front window. 2 On March 1, 2016, Complainant’s workers’ compensation claim was accepted by the Office of Workers’ Compensation Programs (OWCP). 3 2020005306 In May 2016, Complainant had an interactive meeting with the District Reasonable Accommodation Committee (DRAC) seeking a permanent accommodation for his medical restrictions. Following the meeting, Complainant submitted an updated DRAC Form 2-B with current medication restrictions dated June 30, 2016, again indicating he was only able to perform sedentary work for the foreseeable future. As such, the DRAC determined Complainant was unable to perform the essential functions of his carrier position and initiated a search for other positions to which he could be reassigned. On July 6, 2016, the Agency offered to reassign Complainant to a two-hour per day custodial position performing light duties as an accommodation. Complainant declined the offer, indicating in the main that he was dissatisfied with the number of hours offered. Agency witnesses asserted there were no other vacant funded position within Complainant’s medical restrictions available to which he could be reassigned. As such, beginning on July 8, 2016, Complainant went out on extended leave, in both paid leave status and leave without pay status. In November 2017, his application for disability retirement was approved. Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Here, Complainant claimed that management failed to provide him with reasonable accommodations for his disability. Substantial record evidence supports the AJ’s finding that Complainant was provided with a temporary assignment to sedentary work while management officials were actively engaged in an interactive dialogue with Complainant concerning permanent accommodations for his disability. Moreover, Agency management attempted to accommodate Complainant with a reassignment offer in compliance with his medical restrictions as a part-time custodian. However, Complainant declined the offer, asserting the limited number of hours was unacceptable. There was no evidence presented of the existence of another vacant funded position available offering the type of work Complainant needed, per his medical restrictions, and Agency witnesses testified they were unable to find such a position. Complainant argues that there were a number of managerial and other craft positions available that would have met his need for sedentary work. However, the record establishes that placement in these positions would have resulted in a promotion for Complainant. We have long held that an employer is not required to reassign an employee to a promotional position as a reasonable accommodation. See EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, Section on Reassignment (Oct. 17, 2002). In sum, the evidence of record fully supports the AJ’s conclusion that the Agency was not in violation of the Rehabilitation Act with respect to accommodating Complainant. 4 2020005306 CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, 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. 5 2020005306 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. 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 22, 2021 Date