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

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2020001304 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nita H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020001304 Agency No. 4J-604-0120-18 DECISION On November 7, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 7, 2019 final decision concerning her equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a City Letter Carrier at the Agency’s Post Office in Robbins, Illinois. On September 22, 2018, Complainant filed a formal EEO complaint alleging the Agency discriminated against her based on disability, sex (female), and/or unlawful retaliation2 when, in May 2018, she was not accommodated per her medical restrictions when her work assignment was changed and her hours were reduced. 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. 2 Complainant did not include retaliation in her formal complaint. However, she did assert it during the investigation of her complaint and the Agency addressed it in its final decision. 2020001304 2 Following an investigation, Complainant requested that the Agency issue a final decision.3 On October 7, 2019, the Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), based on the evidence developed during its investigation, finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation 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. 29 C.F.R. §§ 1630.2(o) and (p). 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 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). Complainant explained that she had a broken hip that required surgery and has long-standing medical restrictions limiting her ability to walk for more than short periods. For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability. The record establishes that as a result of her medical condition, the Agency has provided her with a limited duty carrier assignment since 2010, based on her medical restrictions at that time. The former Officer-in-Charge of the Robbins Post Office stated that due to actions initiated by a U.S. Congressman apparently involving the creation of a new zip code, mail deliveries formerly made by the Robbins Post Office were given to another post office. As a result, around May 2018, some of the Robbins routes had to be adjusted. The Postmaster explained that, in this process, Complainant’s work assignment was not changed, but her route was changed. He acknowledged that changes in Complainant’s route did involve her losing about 50-60 mounted deliveries, which were given to male coworker. The Postmaster stated that adjustments were made by management in coordination with the union and were also made to the routes of other carriers as well. 3 The Agency originally processed the complaint as a mixed case. However, on July 17, 2019, the Merit Systems Protection Board (MSPB) dismissed her appeal for lack of jurisdiction and case was returned to the EEO complaint process. 2020001304 3 Despite this change in Complainant’s route, there is little support for her claim that she was denied reasonable accommodation for her medical condition. There is no evidence that once her route was changed that Complainant was forced to assume any walking portions of her route. Instead, another employee continued to deliver the walking portions and Complainant was only required to perform mounted deliveries. While not altogether clear, Complainant seems to allege also that the route adjustment resulted in her hours being cut. However, the Agency has asserted, and Complainant has not denied, that on the occasion when she worked less than eight hours on her route, she was still compensated for eight hours via workers’ compensation benefits. The record also shows that after her accommodation request in 2010 that originally resulted in her limited duty position, Complainant did not submit another accommodation request until August 2018, months after the route adjustment. In sum, we concur with the Agency’s conclusion that the weight of the evidence does not support Complainant’s claim that she was denied reasonable accommodation for her disability in May 2018 when her route was adjusted. Disparate Treatment - Sex and/or Retaliation A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; 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. See 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). As an initial matter, with regard to Complainant’s retaliation claim, she asserted it was the result of an EEO matter about seven years prior to the events at issue. However, the record contains no evidence that any of the managers involved in the current allegations were involved with or even aware of this prior EEO activity. Therefore, the record does not contain even an initial inference of retaliatory motivation in the route adjustment at issue. Moreover, based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. As already discussed above, the responsible Agency managers explained that route adjustments were necessitated by the creation of a new zip code that resulted in the Robbins Post Office losing some of its routes. As a result, changes were made to a number of routes that impacted Complainant and other carriers, including males. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discriminatory or retaliatory motivations. 2020001304 4 CONCLUSION We AFFIRM the Agency’s final decision because the ponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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. 2020001304 5 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 22, 2021 Date