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

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020002534 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mary Z.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020002534 Hearing No. 560-2019-00135X Agency No. 4J-630-0017-18 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated December 23, 2019, finding no discrimination concerning her 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, in the Agency’s Wheeler Post Office in St. Louis, Missouri. 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. 2020002534 2 On April 10, 2018, Complainant filed her complaint alleging discrimination based on race (African American), sex (female), age (over 40), disability, and in reprisal for prior EEO activity when: On or around October 25, 2017, she was not accommodated per her medical restrictions when management rescinded her Modified Duty Assignment. The record indicates that Complainant had a work-related injury (sprain of back, lumbar region, and sacroiliitis) in 2004. Since that time, Complainant was not able to perform the essential duties of her City Carrier position and was assigned to limited duty tasks. From October 26, 2012, to October 4, 2017, Complainant was assigned to a full-time limited duty capacity within her medical restrictions. The record indicates that in September 2017, Complainant submitted Form CA-17 indicating she could work four hours per day with restrictions, i.e., lifting 5-10 pounds continuous/15 pounds maximum, sitting/standing for 2 hours, walking 2-3 hours, no climbing, no kneeling, no bending/stooping, no twisting, and no pulling/pushing. Based on this new information, the Agency initially offered Complainant a Modified Assignment on October 5, 2017, working four hours per day within her medical restrictions, i.e., standing/sitting 1-2 hours, lifting 5-10 pounds continuous/15 pounds maximum, 1-2 hours intermittent, walking 1-2 hours, and no bending/twisting/climbing. The duties involved: answering phone calls/resolve complaints, 1-4 hours; casing, 1-2 hours; verifying “UBBM”/caller window, 1-3 hours; and resolving/investigating “ECC” complaint, 1-4 hours. Complainant accepted the offer. The Agency indicated that when it forwarded Complainant’s October 5, 2017 Modified Assignment to Office of Workers’ Compensation Programs (OWCP) as it was required to do, the OWCP advised the Agency to rescind that offer and return her to work a full-time, limited duty status because her four-hour restrictions were not accompanied by a notice of recurrence or medical rational to support a worsening of her condition. On October 25, 2017, the Agency offered Complainant a Modified Assignment. Complainant refused the offer. After completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but later withdrew the request. The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.2 2 We note that the Agency issued a prior final decision dated April 30, 2018, dismissing Complainant’s complaint, i.e., claim 1, as stated in this decision, and claim 2, its mishandling of her OWCP case seeking continuation of pay for her on the job injury, for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Upon Complainant’s appeal, the Commission, in EEOC Appeal No. 0120181916 (Sept. 11, 2018), affirmed the Agency’s dismissal of claim 2, but reversed its dismissal of claim 1 and remanded claim 1 for further processing. 2020002534 3 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 (EEO MD-110), Chap. 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 parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish 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 Construction 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community 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. See St. Mary's Honor Center 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 the personnel action at issue, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable accommodation, complainant must show that: (1) he or she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he or 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, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). 2020002534 4 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). After a review of the record, we find that Complainant failed to show that she was denied a reasonable accommodation when she was offered a full-time limited job offer on October 25, 2017. Complainant indicated that due to her work-related injury, she was unable to perform the essential functions of her City Letter Carrier position. Complainant acknowledged that she was indeed accommodated with a full-time limited assignment within her medical restrictions from October 26, 2012, to October 4, 2017. Based on her new September 2017 CA-17 Form, Complainant was initially offered a four-hour limited job assignment on October 5, 2017, but the Agency rescinded such upon the OWCP’s advice to do so. Although the Agency offered a full- time limited job offer on October 25, 2017, Complainant declined the offer and continued to work four hours per day. The Agency continued providing Complainant work within her restrictions up to four hours per day. The Agency indicates that Complainant was compensated by the Department of Labor from October 25, 2017, to the date she retired on disability for the four hours per day she did not work. The record indicates that Complainant retired on disability on August 3, 2018. Upon review, we find that Complainant failed to show that she was denied a reasonable accommodation. Furthermore, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2020002534 5 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. 2020002534 6 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 June 7, 2021 Date