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

Equal Employment Opportunity Commission

Sep 23, 2021

Appeal No. 2020003303 (E.E.O.C. Sep. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ross H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020003303 Hearing No. 471-2018-00069X Agency No. 1C-452-0005-17 DECISION Complainant timely 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 April 3, 2020, final order concerning his 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued summary judgment in the Agency's favor; and 2) whether Complainant established that he was denied a reasonable accommodation for his disability. 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. 2020003303 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Probationary Mail Processing Clerk at the Agency’s Network Distribution Center (NDC) in Cincinnati, Ohio. Report of Investigation (ROI), at 73. The duties of Complainant’s position required lifting sacks and containers of mail weighing up to 70 pounds. ROI at 141. Complainant began his career with the Agency on September 3, 2016, and worked the third shift from 10:30 p.m. through 5:30 a.m. on September 7-8, 2016. Id. at 76. Complainant however suffered an injury to his back during the third shift within the first few days of his employment with the Agency. Id. According to Complainant, the next morning he felt a very severe pain in his back and so he visited a Nurse Practitioner and received an x-ray on September 9, 2016. Id. Complainant then reported his injury and absence to the Agency. But his back pain was still intense on September 10, 2016, so he visited a local hospital emergency room where he was diagnosed with a lumbar strain. Id. Complainant averred that on September 22, 2016, his doctor subsequently provided him with a return to work release with no restrictions, but he was instructed that he should “lift to tolerance.” Id. at 77. Complainant then returned to work, but again suffered an injury to his back after lifting in-house containers. Id. According to Complainant, the next morning, after he re-injured his back, he returned to his doctor for treatment. Id. After Complainant again returned to work from injury, the Manager of Distribution Operations (MDO) presented Complainant with a Notice of Separation dated September 28, 2016, terminating Complainant from employment during his probationary period. Id. at 162. The MDO attested that Complainant was injured while on duty on September 6, 2016, but he did not specifically report his injury to any management official. The MDO stated that Complainant returned to work on September 22, 2016, and incurred another injury. Id. at 131. The MDO believed that Complainant could not work in a safe manner. Id. On February 6, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (physical), and age (74) when on September 28, 2016, he received a Notice of Separation. Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant’s objections, issued a decision without a hearing on March 31, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The AJ specifically found that Complainant failed to establish that the Agency’s legitimate, nondiscriminatory reasons were pretextual based on his protected classes. 2020003303 3 The AJ specifically found that the Agency terminated Complainant for the failure to follow postal regulations, as he failed to timely notify management of his injuries sustained on the job. The AJ found that Complainant did not show that the Agency was motivated by discriminatory animus with regard to his race, sex, age, or disability. CONTENTIONS ON APPEAL On appeal, Complainant maintains that he timely reported his injuries to management and did not violate the Agency’s regulations, as management has alleged. He maintains that the Agency subjected him to discrimination when it immediately terminated him, an injured employee, without any form of progressive discipline. Complainant also asserts that the Agency’s investigation was inadequate, contending that the EEO Investigator failed to sufficiently develop the record with documentation regarding the Agency’s actions. Complainant does not specifically raise discrimination based on his race, age, and sex on appeal.2 In response, the Agency requests that we affirm its final order adopting the AJ’s decision. ANALYSIS AND FINDINGS Summary Judgement 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. 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. We find that 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. 2 As such, we exercise our discretion to not address these bases in our decision. 2020003303 4 Reasonable Accommodation3 Under the Commission's regulations, an Agency is required to make reasonable accommodations of the known physical and mental limitations of a qualified individual with a disability unless the Agency can now that accommodation would cause undue hardship. 29 C.F.R. § 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: 1) he is an individual with a disability as defined by 29 C.F.R. § 1630.2(g); 2) he 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 (Guidance), EEOC No. 915.002 (Oct. 17, 2002). Assuming arguendo that Complainant was an individual with a disability within the meaning of the Rehabilitation Act, we note that a qualified individual with a disability is defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m); see also Struthers v. Dep't of the Navy, EEOC Appeal No. 07A40043 (June 29, 2006) (complainant has the threshold burden of establishing that she is a qualified individual with a disability). Although a probationary employee, such as Complainant, may not be denied reassignment as a reasonable accommodation solely on the basis of probationary status, the probationary employee nonetheless must have established that he is a “qualified individual with a disability.” Guidance at Question 25. The Commission's enforcement guidance on reasonable accommodation addresses this situation, noting that “an employee with a disability is eligible for reassignment to a new position, regardless of whether s/he is considered ‘probationary' as long as the employee adequately performed the essential functions of the position, with or without reasonable accommodation before the need for a reassignment arose.” Id. There is no “bright-line” test to determine how long the employee must perform the essential functions of the position with or without reasonable accommodation to be eligible for reassignment. However, “the longer the period of time in which an employee has adequately performed the essential functions, with or without reasonable accommodation, the more likely it is that reassignment is appropriate if the employee becomes unable to continue performing the essential functions of the current position due to a disability.” Id. The Guidance continues: If, however, the probationary employee has never adequately performed the essential functions, with or without reasonable accommodation, then s/he is not entitled to reassignment because s/he was never qualified for the original position. In this situation, the employee is similar to an applicant who applies for a job for which s/he is not qualified, and then requests reassignment. Applicants are not entitled to reassignment. Id. 3 While the AJ used a disparate treatment analysis, we find that Complainant’s case is more appropriately addressed under a reasonable accommodation theory. 2020003303 5 Upon review, we find that Complainant did not establish that he was a qualified individual with a disability. We note that Complainant was in a probationary status and only worked for the Agency for a few days before being significantly injured twice lifting containers and sacks of mail. As result, Complainant was required to take leave from work to go to the emergency room and see his doctor for x-rays. We note that the duties of Complainant’s position required lifting sacks and containers of mail, which can weigh up to 70 pounds. As such, we find that there is no reasonable accommodation that would enable Complainant to perform the essential functions of the Mail Processing Clerk position. Under these circumstances, Complainant is not eligible for reassignment because he was never qualified for the position for which he was hired. See Clinton C. v. U.S. Postal Serv., EEOC Appeal No. 2018000044 (Oct. 9, 2019) citing Shelley v. U.S. Postal Serv., EEOC Appeal No. 0720070076 (June 14, 2012) (finding that complainant, a probationary employee, was unable to establish that he was qualified or entitled to a reassignment because he could not establish that he could perform the essential functions of his position for which he was hired after he was hospitalized due to a medical condition after working for the agency for several days). Because Complainant has not demonstrated that he could perform the essential functions of the position for which he was hired, we find that he has not established that he is a qualified individual with a disability.4 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 finding no discrimination. 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. 4 Notwithstanding Complainant’s contentions on appeal, we find that the record was adequately developed for determining whether Complainant was a qualified individual with a disability. 2020003303 6 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. 2020003303 7 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 September 23, 2021 Date