[Redacted], Mitzie W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jun 23, 2021

Appeal No. 2020001488 (E.E.O.C. Jun. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mitzie W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020001488 Hearing No. 450-2018-00412X Agency No. 4G-752-0142-18 DECISION On November 20, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 22, 2019 final decision 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Complainant worked as a Rural Carrier, 00/10, at the Post Office in McKinney, Texas. Complainant asserted that her medical condition is breast cancer and that she had surgery and was out of work from October 17, 2017 through the first week of January 2018. After surgery, Complainant stated that she could not lift her left arm above her head. Complainant stated she had no other work limitations. Complainant claimed that on December 4, 2017, after her breast cancer surgery, she requested reasonable accommodation in the form of light duty. Complainant alleged that the Postmaster informed her that he did not have any light duty work available. Further, according to the collective bargaining agreement, light duty was not available for regular rural carriers. Complainant disagreed that there was no work available because it was the Agency’s busiest time of the year. 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. 2020001488 2 Complainant did not submit any medical documentation in support of her request for reasonable accommodation. Complainant returned to work with no restrictions on January 2, 2018. On May 16, 2018, Complainant filed a formal EEO complaint in which she alleged that the Agency discriminated against her on the bases of race/national origin2 (Hispanic/Latina), disability (breast cancer), age (45), and in reprisal for prior protected EEO activity when, in December 2017, Complainant’s request for light duty as a reasonable accommodation was not granted. At the conclusion of the ensuing investigation, the Agency provided Complainant with copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ assigned to the matter remanded the complaint to the Agency for a final agency decision. The Agency issued a decision finding that Complainant was not subjected to discrimination or reprisal as alleged. On appeal, Complainant maintains that the Agency failed to provide her with a light duty assignment as a reasonable accommodation. She does not challenge the Agency’s findings and conclusions with respect to any basis other than disability. 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 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Denial of Reasonable Accommodation Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dep’t. of Agric., EEOC Appeal No. 0120120400 (December 3, 2015). 2 The Commission considers “Hispanic” a basis of national origin discrimination not race. Leora R. v. U. S. Postal Serv., EEOC Appeal No. 2020003139 n.2 (March 29, 2021); King W. v. U.S. Postal Serv., EEOC Appeal No. 0120143148 n. 2 (Feb. 25, 2016). 2020001488 3 To establish that she was denied a reasonable accommodation, 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 her with a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation. An individual with a disability is “qualified” if she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental duties of the employment position that the individual holds or desires. 29 C.F.R. § 1630.2(n). Complainant averred that she was diagnosed with breast cancer in April 2017. She stated that as a result of having surgery, she could not lift her left arm above her shoulder. IR 75, 132. The record is devoid of any other information pertaining to Complainant’s condition. Complainant confirmed that she was off work from October 17, 2017 through January 2, 2018, following treatment. Complainant sought an accommodation around December 4, 2017 and returned to work on January 2, 2018 without any restrictions. This tends to indicate that Complainant’s medical condition was transitory, and therefore not a qualifying disability entitling her to a reasonable accommodation. See Idell M. v. Dep't of Agric., EEOC Appeal No. 0120140792 (Aug. 4, 2016) (finding complainant was not entitled to a reasonable accommodation when recovering from surgery on her left foot after all medical documentation indicated that the condition was temporary); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120122572 (Dec. 4, 2014) (finding no evidence of qualifying disability within the meaning of the ADAAA when Complainant had a leg injury that required two surgeries and her recuperation periods were no more than two to four weeks). Nonetheless, even assuming that Complainant is an individual with a disability, Agency officials affirmed that Complainant could not perform the full duties of a rural carrier which included reaching above the shoulders. Complainant did not identify any accommodation that would allow her to perform the essential duties of her position. The only accommodation Complainant requested was light duty. The Postmaster affirmed that there is no light duty available for rural carriers pursuant to the collective bargaining agreement and, at the time, he had no other available work within Complainant’s restrictions. The Postmaster noted that Complainant did not follow up with him after this conversation or submit any medical documentation further supporting her request. Complainant presented no evidence that there was work available that she could perform within her restrictions. On the basis of the evidentiary record before us, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Furthermore, beyond her bare assertions on appeal, Complainant has presented no evidence which contradict or undercut the Agency’s explanation for its actions. The Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. 2020001488 4 Thus, to the extent Complainant claims that she was subjected to disparate treatment (apart from accommodation), the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that Complainant was an individual with a disability. 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). 2020001488 5 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. 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 23, 2021 Date