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

Equal Employment Opportunity Commission

Dec 6, 2021

Appeal No. 2021000662 (E.E.O.C. Dec. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynne E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021000662 Hearing No. 570-2019-00350X and 570-2019-00001X Agency No. 1K-221-0059-17 and 1K-221-0030-18 DECISION On October 2, 2020, 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 August 28, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Automation Clerk, PS-6, at the Agency’s Processing and Distribution Center in Dulles, Virginia. On December 21, 2017, Complainant filed an EEO complaint (EEOC No. 570-2019-00350X and Agency No. 1K-221-0059-17) (“Complaint 1”) alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Indian), sex (female), religion (Hindu), color (Brown), disability, age, and reprisal for prior protected EEO activity when: 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. 2021000662 2 1. On August 14, 2017 and ongoing, she had not been allowed to work her permanent modified work assignment and had been assigned to work numerous assignments; 2. On or about August 15, 2017 and on unspecified dates, she had not been provided with enough union time; 3. On August 14, 2017 and ongoing, she had not been provided with a medically approved chair; and 4. On March 25, 2017, after sustaining an on-the-job injury and filing a claim with the Department of Labor’s Office of Workers’ Compensation Programs (OWCP), her claim had not been approved and she had not been credited for annual leave and sick leave. On January 11, 2018, the Agency dismissed all the claims in Complaint 1 and Complainant appealed to the Commission. The Commission found the Agency properly dismissed claims (2) and (4) of Complaint 1, for failure to state a claim. The Commission remanded claims (1) and (3) for further processing, finding the record was insufficient to conclude that Complainant had previously raised these claims.2 On March 30, 2018, Complainant filed an EEO complaint (EEO Complaint No. 570-2019- 00001X and Agency No. 1K-221-0030-18) (“Complaint 2”) alleging that the Agency discriminated against her on the bases of race, national origin, sex, religion, color, disability (mental and physical), age, and reprisal for prior protected EEO activity when: 1. Since January 2015 and ongoing, Complainant had not been allowed to work her permanent modified work assignment, and had been assigned to work numerous assignments; 2. On March 25, 2017, after sustaining an injury on duty and filing a claim with the Department of Labor, Office of Workers Compensation (OWCP), Complainant’s claim had not been approved and she had not been credited for annual leave and sick leave; 3. On or about PP 22/2017, Complainant became aware that management was deducting money from her pay to repay a debt; 4. On January 15, 2018, February 19, 2018, and other holidays to be provided, Complainant was not permitted to work; and 5. On March 17, 2018, all limited duty clerks’ start times were changed from 8 am to 7 am, but Complainant’s start time remained at 8 am. 2 Because the Commission decided that claims (2) and (4) of Complaint 1 were properly dismissed, they are not currently before the Commission. 2021000662 3 The Agency dismissed claims (1), (2), and (3) of Complaint 2 pursuant to 29 C.F.R. § 1614.107(a)(1). In so doing, the Agency found that claims (1) and (2) state the same claim pending before or decided by the Agency or Commission, noting these claims are identical to claims raised in Complaint 1. With regard to claim (3), the Agency found that the claim failed to state a claim, as it was a collateral attack on the Debt Collection Act process. The Agency conducted investigations of the accepted claims, which produced the following pertinent facts: Complaint 1 - Claims (1) and (3) Regarding her alleged basis of reprisal, Complainant identified several EEO complaints and noted that she has filed the most complaints within her facility. All responsible management officials denied recalling Complainant’s prior EEO activity. Regarding her alleged basis of disability, Complainant attested that she had several permanent job-related injuries, including injuries to both shoulders due to repetitive work; injury to her lower back due to bending and lifting; and injuries to her neck, left hand, and left side, due to the back of her chair being hit by mail equipment. She attested that she was unable to perform her regular duties as an Automation Clerk, including working 8 hours per day, bending, lifting more than 10 pounds, or push/pull requirements. She attested that she was assigned duties to manually sort/grasp letters from 8 am to 12 pm. She attested that she had limitations relating to walking, standing, bending, running, pushing, lifting, and sitting. She attested that management was provided a Form CA-17 that reflected her work limitations due to her job-related injuries. Complainant acknowledged that she had occasionally received an accommodation of being provided a chair at her work area. Complainant’s supervisor (“Supervisor”) attested that she was aware of Complainant’s limitations related to her shoulder pain, as reflected on her Form CA-17. She attested that Complainant’s work involved nixies, damaged mail, rewrap flats and small parcels and unique zips, as needed, and her medical condition does not affect her ability to perform her work assignments. The Manager, Distribution Operations attested that Complainant has the following work-related limitations: lifting no more than 10 pounds; no reaching above the shoulder; twisting/bending/stooping limited to 2 hours; and simple grasping limited to 4 hours. She attested that Complainant performed duties in nixies, rewrapped the damaged letters and flats, and sent loose in the mail to the Atlanta recovery center. She attested that Complainant was provided a medically approved chair and her assigned duties were consistent with her medical restrictions. In claims (1) and (3), Complainant alleged that on August 14, 2017 and ongoing, she had not been allowed to work her permanent modified work assignment, had been assigned numerous assignments, and was not provided a medically approved chair. 2021000662 4 She attested that she had a modified assignment dated February 25, 2015 that was in effect on August 14, 2017, but she did not know if it was permanent. She attested that, prior to a job- related injury on March 25, 2017, she printed placards but, after the injury, she was not permitted to do so. She attested that, beginning August 14, 2017, she was sent to nixie letters and damaged mail without a modified job offer and told management that, if this was her job, then it should be on a PS Form 2499. She attested that she was sent back and forth to unique zip letters and nixies but was not allowed to print placards. She attested that, on December 19, 2017, she was given a new modified assignment. Complainant alleged that her race, color, religion, sex and national origin were factors because she had an injury due to lack of safety and she was moved to another area. Supervisor explained that, prior to August 14, 2017, Complainant was assigned to perform duties in unique zips, to print placards and do manual letter casing as needed, but her duties were changed because there was not enough mail in unique zips. Complainant was reassigned to do work within her limitations, but in a different area. The Manager, Distribution Operations (Manager1) attested that Complainant had been assigned the job duties according to her medical restrictions. She explained that Complainant’s permanent modified assignment prior to August 14, 2017 was to print placards for the automation machines and distribute to the machines, but Complainant’s assignment was changed because she was out for a long period and lost access to print the placards, so they assigned another employee to that job. She further explained that, since August 14, 2017, Complainant had been given other assignments consistent with her medical restrictions. The Plant Manager (Manager2) attested that limited duty employees are assigned work based on their restrictions and he assumed Complainant was probably assigned work within her restrictions. Complainant attested that, as a result of her injuries, her doctors prescribed a special chair for her to use when performing her modified assignment of sedentary duties. She attested that she requested the medically approved chair from Supervisor on numerous occasions and was not provided the chair until December 19, 2017, when her assignment changed. She attested that, in response to her requests, she was told, “I am not your maid to give you a chair here to there.” Complainant attested that, prior to December 19, 2017, she worked in two locations, nixies and damaged mail, that were on different ends of the building and someone had to push the chair from one location to another for her. Complainant alleged that her race, color, religion, sex, and national origin were factors in the events because she was told, “I am not your maid to give you a chair here to there.” Supervisor attested that Complainant never mentioned this to her and Complainant was using the same medically approved chair that she was using in unique zips. She explained that they always provide the Complainant’s chair and move it if her work location is changed. 2021000662 5 Manager1 attested that Complainant was provided with the appropriate chair and accommodated within her restrictions. The record includes several letters from doctors requesting that Complainant be provided a chair with an adjustable arm rest and adjustable height. Complaint 2 - Claims (4) and (5) Regarding her alleged basis of disability, Complainant attested that she had several permanent injuries to both shoulders, lower back, neck and left hand. She also indicated that she had anxiety and panic attacks due to ongoing work-related stress since 2013 and that she had sleep apnea, which caused her to be unable to work late hours. The responsible management officials generally indicated they were aware of Complainant’s physical limitations and that she was assigned work within them, as noted above. Regarding her alleged basis of reprisal, as noted above, Complainant identified several EEO complaints and all responsible management officials denied recalling Complainant’s prior EEO activity. In claim (4), Complainant alleged that was not permitted to work holidays. She attested that she had not been permitted to work any of the 10 holidays on the Agency’s calendar. She explained that her modified assignment was in unique zips and there was not enough mail to cover 4 hours every day, but on holidays, there was too much mail available. She attested that she worked in unique zips until December 19, 2017, when she was moved to nixies and damaged mail, but she did not know why she was not permitted to work holidays. She asserted that Tour 1 employees are given overtime and employees with lower seniority were permitted to work holidays. Supervisor attested that Complainant recently informed her that she had not been permitted to work on Martin Luther King, Jr. Day and President’s Day in 2018. She attested that she had no involvement with that decision. Supervisor and Manager1 attested that the Agency’s policy is that no light duty employees are permitted to work holidays. Manager1 attested that this decision was made along with the Union Representative. In claim (5), Complainant alleged that, on March 17, 2018, all Tour 2 automated employees and limited duty employees had their start times changed from 8 am to 7 am, but hers remained at 8 am. She asserted that the reason for the time change was to correct the delivery of mail in the automation section. Supervisor and Manager1 each attested to being aware that Complainant’s starting time was not changed in February 2018 and that they were not involved in the decision and were not aware of the reasons why her start time was not changed. 2021000662 6 Manager2 attested that Complainant was a limited duty employee whose work schedule could be adjusted when work was available and in the best interests of the Postal Service, which was reviewed on a case-by-case basis. The Manager, In-Plant Support (Manager3) attested that his staff made changes in the system and pulled the names for all Tour 2 employees from Webcoins and Complainant’s name was not pulled because she was a Tour 1 employee who had a modified job assignment which assigned her to Tour 2 work hours. At the conclusion of the investigations, the Agency provided Complainant with a copy of the reports of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing on both complaints. The cases were consolidated for joint processing and assigned to an AJ. Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 17, 2020 motion for a decision without a hearing and issued a decision by summary judgment on August 20, 2020. The AJ’s decision also affirmed the dismissal of claims (1), (2), and (3) of Complaint 2. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant requests a hearing on both complaints. She also notes various federal statutes to be considered in her complaint, including statutes that are not under this Commission’s jurisdiction, and various allegations as related to those statutes. She also reiterates her contentions, submits additional evidence, and alleges damages. In response, the Agency asserts that the AJ properly decided Complainant’s claims and requests that we affirm the AJ’s decision and the Agency’s final decision adopting it. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 2021000662 7 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Dismissed Claims An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). As noted above, the Agency and AJ dismissed claims (1), (2), and (3) of Complaint 2 pursuant to 29 C.F.R. § 1614.107(a)(1), finding that claims (1) and (2) state the same claim pending before or decided by the Agency or Commission and that claim (3) was a collateral attack on the Debt Collection Act process. EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides, in pertinent part, provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Agency or Commission. Here, we find that Complainant’s allegations in claim (1) Complaint 2, that she had not been allowed to work her permanent modified work assignment and had been assigned to work numerous assignments is the same as those in claim (1) of Complaint 1.3 We also find that her allegations in claim (2) of Complaint 2 are the same as those in claim (4) of Complaint 1. Therefore, dismissal of these claims was proper. In claim (3) of Complaint 2, Complainant alleged that management was deducting money from her pay to repay a debt. The Debt Collection Act, 31 U.S.C. § 3711 et seq., mandates that monetary disputes involving an agency of the United States government and any claimed debtor must be resolved through the provisions of the Debt Collection Act. Thus, the proper forum for Complainant to have raised this challenge is under the Debt Collection Act process. 3 The allegations in Complaint 2 begin in January 2015, which is prior to the alleged start date of August 2017 in Complaint 1. However, we find the record and the background of Complaint 1 sufficiently addresses the events prior to August 2017. 2021000662 8 The Commission's regulations do not convey it with jurisdiction to decide matters covered by the Debt Collection Act. Baughman v. Department of the Army, EEOC Appeal No. 01900865 (February 26, 1990); Amato v. Department of the Army, EEOC Request No. 0520070240 (July 18, 2007); Emelda F. v. U.S. Postal Service, EEOC Appeal No. 2019001020 (April 5, 2019). Therefore, dismissal of this claim was proper. Disparate Treatment Claims Complainant’s allegations in claim (1) of Complaint 1 and claims (4) and (5) of Complaint 2 give rise to claims of 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, she 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. 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). Here, assuming arguendo that Complainant established a prima facie case, her claims still fail, as we find the Agency has articulate legitimate non-discriminatory reasons for its actions. The Agency explained that Complainant’s duties were changed because, while Complainant was out for an extended period of time, her duties were given to another employee and, upon her return, there was not enough work in her former area. The Agency also explained that Complainant was assigned work within her limitations. The Agency explained that Complainant was not allowed to work holidays because the Agency’s policy was that light duty employees were not permitted to work holidays, and this was in accordance with the Union’s agreement. The Agency explained that Complainant’s start time was not changed to 7 am because she was a Tour 1 employee who had a modified job assignment which assigned her to Tour 2 work hours. Although Complainant has alleged the Agency acted discriminately or in reprisal, the record does not contain evidence beyond her bare assertions that the Agency’s actions were motivated by her race, national origin, sex, religion, color, disability, age, and/or prior protected EEO activity. Therefore, her claims fail. 2021000662 9 Reasonable Accommodation Claim Complainant’s allegations in claim (3) of Complaint 1 give rise to a claim of a denial of a reasonable accommodation. The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See generally 29 C.F.R. Part 1630. In order to establish that she was denied a reasonable accommodation, a complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). Here, the Agency does not dispute that Complainant is an individual with a disability and, therefore, covered by the Rehabilitation Act. Therefore, the next inquiry is whether Complainant is a “qualified individual with a disability.” 29 C.F.R. §1630.2(m). A “qualified individual with a disability” is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who, with or without reasonable accommodation, can perform the essential functions of such position. Id. Neither the record nor the Agency suggests that Complainant was not capable of performing the essential functions of her position, as the Agency has indicated that Complainant was assigned duties within her capabilities. Therefore, we find she was a qualified individual with a disability and the next issue is whether the Agency failed to provide her a reasonable accommodation. Here, Complainant alleged that the Agency failed to provide her with a medically approved chair. However, the record, including Complainant’s statements indicate that she was provided such a chair and that the Agency moved the chair between Complainant’s work locations for her. Therefore, we find that Agency met its obligation to reasonably accommodate Complainant’s need for a medically approved chair. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2021000662 10 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). 2021000662 11 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 December 6, 2021 Date