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

Equal Employment Opportunity Commission

Apr 26, 2022

Appeal No. 2021002813 (E.E.O.C. Apr. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mamie T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2021002813 Agency No. 1E-801-0051-20 DECISION On February 22, 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 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 relevant time, Complainant worked for the Agency as a Mail Handler Assistant in Denver, Colorado. On September 10, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on disability (right calf strain) and in reprisal for prior protected EEO activity when: 1. From June 4, 2020 and continuing, she has not received proper compensation for her on-the-job injury claim; and 2. On July 1, 2020 she was issued a Letter of Separation 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. 2021002813 2 In a partial dismissal decision dated October 1, 2020, the Agency dismissed claim 1 for failure to state a claim, pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(1). Following its dismissal of claim 1, the Agency accepted claim 2 for investigation. The record reflects that on June 4, 2020, Complainant suffered an injury on the job which resulted a strain in her lower right calf. Following her injury, Complainant provided the Agency with a work activity status report from Complainant's treating physician advising that Complainant could return to work on June 11, 2020 with the restriction that “she should be sitting 100% of the time” and could not drive.” Subsequently, the Agency presented Complainant with a Modified Job Offer dated June 16, 2020. This modified job offer called for Complainant to patch packages, and flat boxes to return to mail flow. Complainant was required to tape packages, boxes and flat repair damages. Complainant refused the modified assignment offer but did not provide an explanation for her refusal. The record indicates that in a subsequent work activity status report dated June 22, 2020, Complainant's physician indicated that Complainant could return to work on June 22, 2020 with the following restrictions: no climbing stairs or ladders, may not drive company vehicle due to functional limitations, non-weight bearing, may not walk on uneven terrain, patient is able to work [the] entire shift.” Thereafter, on June 25, 2020, Complainant’s supervisor sent correspondence to Complainant instructing her to report to work on June 29, 2020 to discuss her return to work. However, the record indicates that Complainant failed to report to the meeting. Moreover, Complainant did not call or request leave. Instead, a computer-generated notification of absence reported Complainant as absent without leave. Subsequently, on July 1, 2020, the Agency issued Complainant a letter of Separation for her unsatisfactory attendance. After 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. 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, 2021002813 3 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”). Partial Dismissal - Claim 1 In a partial dismissal decision dated October 1, 2020, the Agency dismissed claim 1 for failure to state a claim, pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(1). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U. S. Postal Serv., EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The record reflects that Complainant sustained an on-the-job injury and suffered a strain in her right calf. Complainant applied to receive continuation-of-pay (COP), a workers’ compensation benefit, following her injury. However, she alleges that she has not received proper compensation from the Office of Workers’ Compensation Programs (OWCP) for her injury. The proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP process is within that adjudicatory forum itself. Complainant cannot attempt to use the EEO process to collaterally attack benefits decisions made during the OWCP adjudicatory process. See Nobis v. U.S. Postal Serv., EEOC Appeal No. 0120081269 (March 20, 2008) (dismissing a denial of COP claim as a collateral attack and therefore fails to state an actionable claim). We therefore determine that the Agency's dismissal of claim 1 was proper. Claim 2 To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). A request for a modification at work because of a medical condition is a request for reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue 2021002813 4 Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, Question 1 (Oct. 17, 2002) (“Enforcement Guidance on Reasonable Accommodation”). Under the Rehabilitation Act, an employee is not required to use the “magic” words “reasonable accommodation” when making a request. See Enforcement Guidance on Reasonable Accommodation, Question 1. Instead, the employee or the employee's representative need only inform the agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24, 2006), req. for reconsid. den'd, EEOC Request No. 05A60859 (Sep. 19, 2006); see also Geraldine B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120090181 (Oct. 13, 2015). After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. 1614. app. § 1630.9. Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5. When the need for accommodation is not obvious, an agency may require that the individual with a disability provide documentation of the need for accommodation. 29 C.F.R. pt. 1630 app. § 1630.9. The agency may require only the documentation that is needed to establish that the individual has a disability and that the disability necessitates reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 6. Assuming, for purposes of analysis only, that Complainant is an individual with a disability, she has not shown that the Agency violated the Rehabilitation Act by failing to provide her with a reasonable accommodation and terminating Complainant's employment with the Agency. Instead, the record reflects that in June 2020, the Agency twice received information from Complainant's physician expressly indicating that Complainant could return to work with described medical restrictions, which the Agency adhered to. Complainant was twice offered a modified job assignment within her restrictions. Complainant refused the Agency's modified job offer and failed to attend a scheduled meeting regarding the offer and her return to work. Instead, Complainant was absent without leave. Complainant did not provide the Agency any medical documentation to substantiate her refusal of the modified job offer or any explanation as to what accommodation she desired. See Estate of William K. Taylor, Jr. v. Dep’t of Homeland Sec. EEOC Appeal No. 0120090482 (June 20, 2013). We find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Moreover, the record establishes that Complainant was terminated following her failure to respond to the Agency's inquiries regarding its modified job offer and her unsatisfactory attendance. After a review of the record, and assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, non- discriminatory reasons for the termination decision. We further find that Complainant has not proven, by a preponderance of the evidence, that the Agency's articulated reasons for her 2021002813 5 termination were a pretext designed to mask discrimination because of disability or unlawful retaliatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination on claim 2, for the reasons discussed above, as well as the Agency dismissal of claim 1. 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, 2021002813 6 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. 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 April 26, 2022 Date