[Redacted], Lorraine D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jul 14, 2021

Appeal No. 2020001281 (E.E.O.C. Jul. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lorraine D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020001281 Agency No. 1J-484-0004-19 DECISION On December 6, 2019, 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 November 14, 2019, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant held the position of Mail Handler Equipment Operator (MHEO), 05/A, at the Detroit Network Distribution Center (NDC) located in Allen Park, Michigan. On April 27, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (strain of muscle, fascia, and tendon of the lower back; contusion of unspecified back wall of thorax) and reprisal (prior protected EEO activity) when: (1) on January 18, 2019, she was removed from her MHEO position; and (2) on unspecified dates subsequent to February 16, 2019, she was denied overtime opportunities. 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. 2020001281 2 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. In accordance with Complainant’s request, 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 or reprisal as alleged. FACTUAL BACKGROUND The MHEO job description states that the duties of the position include operating a jitney/forklift/or pallet truck, moving empty equipment, and performing routine safety inspections of vehicular equipment. Complainant explained that before her injury on January 3, 2018, she was a pool driver on equipment which required her to push/pull mail containers up to 100 pounds and dump/offload mail containers. Following her injury, Complainant’s duties were changed to scanning mail containers on inbound docks for four hours and rewrapping damaged mail for four hours. On January 10, 2019, she was assigned to the rewrap room for eight hours to accommodate her medical restrictions. On July 21, 2018, Complainant was awarded the MHEO bid assignment. According to the Agency’s Memorandum of Understanding, Complainant had six months from the time her bid was submitted (January 13, 2019) to assume the full duties of the position. The record contains documentary medical evidence consisting of Physician Work Activity Status Reports and letters from Complainant’s treating physicians between approximately May 2018 and April 2019. In May 2018, Complainant was medically restricted to: No lifting over 15 lbs. No pushing and/or pulling over 15 lbs. of force. Should be sitting 50% of the time. In October 2018, Complainant’s restrictions changed to: No lifting over 20 lbs. No pushing and/or pulling over 20 lbs. of force. Should be sitting 30% of the time. No Hi-lo driving. Sit/stand option. Projected return to full duty is 2 months. In December 2019, Complainant’s restrictions changed to: Sit/stand as needed. No hi-lo driving. As of 12-13-18, Regular duty 4 hours a day, modified duty 4 hours a day. On January 7, 2019, Complainant received notification that she would be removed from MHEO bid assignment effective January 18. 2019. On February 14, 2019, Complainant’s health provider notified the Agency that Complainant had a “flare of lower back pain” and changed Complainant’s medical restrictions to: 2020001281 3 No lifting over 15 lbs. No pushing/pulling over 15 lbs. of force. Should be sitting 50% of the time and should continue as an equipment operator when she able to drive. She is to sit/stand, as needed. On February 21, 2019, Complainant’s medical restrictions changed to: No lifting over 15 lbs. No pushing/pulling over 15 lbs. of force. Should be sitting 50% of the time. Should not be driving equipment, at this time. No bending more than 5 times per hour. She is to sit/stand, as needed. On April 22, 2019, Complainant’s medical restrictions changed to: No heavy lifting over 15 lbs. No pushing/pulling over 15 lbs. Sitting 50% of the day. No driving heavy equipment. No bending more than 5 times per hour. She is to sit/stand, as needed. May return to work without restrictions on 6/24/19 tentatively. On June 6, 2019, the Agency offered Complainant a full-time modified (Limited Duty) Assignment of “rewrapping damaged mail.” The physical requirements of the position are “sitting” and “light lifting.” Complainant accepted the offer on June 18, 2019.2 In addition, Complainant alleged that she was denied overtime opportunities from February 16, 2019 until May 20, 2019, and then again after June 4, 2019. Complainant claimed that after she was pressed by her manager to drive equipment while on restricted duty and refused to do so, the manager had her removed from working the required two hours of non-overtime desired list overtime. Complainant acknowledged that she was not on the overtime desired list. Management explained that Complainant was not on the overtime desired list and that the overtime for which she was eligible and could perform was not available on a consistent basis at the time. The record reveals that Complainant worked overtime on numerous occasions from February through June 2019. 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 2 The record is devoid of evidence to indicate that Complainant’s medical restrictions were ever fully lifted by her treating physicians. 2020001281 4 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty, Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). After a review of the record, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, management explained that Complainant was issued the bid removal notice because she had not been able to perform the essential functions of her position for more than six months due to her medical restrictions, and therefore a replacement was needed due to staffing needs. Management also explained that any denial of overtime was due to the lack of available overtime within Complainant’s medical restrictions. Management officials noted that overtime was being cut back at the time given that the peak was over; thus, available overtime work was limited. The record also shows that Complainant had not put her name on the overtime desired list during the relevant time. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, 450 U.S. at 254. We find the record devoid of evidence of pretext. We note that the undisputed record shows that Complainant was physically unable to perform the full duties of the MHEO position within six months of being awarded the bid assignment in accordance with the Memorandum of Understanding. While Complainant asserted that the Agency removed her from her MHEO bid on the verge of her returning to full duty status, the record shows that she had not returned to full duty as of the end of June 2019. Moreover, the record is devoid of evidence that Complainant had returned to full duty anytime thereafter. With respect to her denial of overtime claim, the record does not show that similarly situated comparison employees outside her protected classifications received more overtime. Rather, because the peak season was over and there were two other employees with restrictions in the rewrap section, overtime was being cut back due to there not being enough work. 2020001281 5 In addition, the undisputed record establishes that Complainant was not able to perform the duties of the more available overtime at issue nor was she signed up for the overtime desired list. Upon review, we find that Complainant has not established that the Agency's reasons were pretextual or were motivated by discriminatory or retaliatory animus. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Denial of Reasonable Accommodation To the extent that Complainant claims she was denied a reasonable accommodation, we find that the evidence in the record does not support such claim. The record reflects that because of her restrictions, Complainant was not qualified to perform her MHEO duties. We find that there were no effective means available to accommodate Complainant in the position she held, which raises the issue of reassignment. See Reita M. v. U.S. Postal Serv., EEOC Appeal No. 0120150260 (July 19, 2017). As Complainant could not be accommodated in her current position, we find that the Agency, absent undue hardship, was obligated to consider reassigning her to a different position, consistent with the Commission's regulations. The record shows that Complainant was offered a new position which she accepted in June 2019. Complainant presented no evidence demonstrating that this position was an ineffective accommodation. Accordingly, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. CONCLUSION Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s final 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. 2020001281 6 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). 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. 2020001281 7 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 July 14, 2021 Date