0120160751
06-21-2018
Tessa G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tessa G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120160751
Agency No. 4K-270-0043-15
DECISION
On December 1, 2015, 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 October 30, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 decision (FAD) which found that Complainant did not demonstrate that she was subjected to discrimination or denied a reasonable accommodation.
ISSUE PRESENTED
The issue presented in this case is whether the FAD erred in finding that Complainant was not issued a Notice of Removal because of her disability or denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Regular Rural Carrier at the Agency's Hilburn facility in Raleigh, North Carolina. Complainant was hired by the Agency on November 10, 2007. At that time, Complainant indicated that she did not have a medical condition that affected her employment or prevented her from performing her duties as a Rural Carrier. On November 1, 2014, Complainant informed her supervisor (S1) and another supervisor (S2) that she had injured her back. Complainant submitted documentation from Urgent Care regarding her injury. On December 5, 2014, S1 indicated that Complainant "blew up on the floor" and accused her of not believing that she had a medical condition. S1, thereafter contacted the Postmaster to obtain Complainant's job application to see if there was information in her job application or file about a pre-existing medical condition.
On December 12, 2014, Complainant submitted medical documentation which indicated that as a result of her back injury she was restricted from lifting over 25 pounds and performing tasks that required excessive bending, twisting, reaching, turning, and carrying. It also indicated that she could not work over 8 hours a day because it caused additional back pain. She requested a reasonable accommodation consistent with these limitations.
On December 19, 2014, Complainant was told by S1 that she had denied her request for reasonable accommodation because Complainant had told her that she had a medical condition which she had had since she was a teenager that affected her back. Specifically, S1 indicated that Complainant had had a "tummy tuck" and that she believed the way they "pulled her skin and attached it on the side" hurt her back. S1 relayed this information to S2. S1 indicated that, thereafter, Complainant was not allowed to work due to safety reasons and because the Rural Carrier Craft did not have Light Duty positions. Complainant's restrictions could not be honored because her restrictions exceeded the duties she was required to perform.
A Pre-Disciplinary Interview was held on January 30, 2015, but Complainant alleged that she was not allowed to respond or address the charges against her prior to being issued the Notice of Removal. Complainant declared that she did not have a preexisting medical condition as was stated in the Notice of Removal. Complainant maintained that her medical condition did not surface until October 31, 2014. She maintained that prior to that date, she did not have a medical condition that affected her employment. Complainant believed that she was discriminated against when management failed to accommodate her medical restrictions.
On February 16, 2015, Complainant provided additional medical documentation, via a letter from her doctor which provided that she "[w]as able to perform her full work duties after 15-days, during which time she was restricted from lifting more than 25 pounds."
Nevertheless, on March 3, 2015, Complainant was issued a Notice of Removal. Complainant was charged with having a preexisting medical condition and failing to disclose her medical condition on her application, eight years earlier.
On June 16, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (back, Spondylolisthesis) when on March 3, 2015, she was issued a Notice of Removal.
At the conclusion of 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 Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that even though Complainant did not establish a prima facie case of disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was issued a Notice of Removal because she failed to disclose a preexisting condition on her employment application. The Agency found that Complainant failed to show that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant did not submit a brief on appeal. The Agency requests that its FAD be affirmed.
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, 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").
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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(c) and (p). "The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such 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).
Reasonable Accommodation
Based on a thorough review of the record, we find that even if we assume that Complainant is a qualified individual with a disability, the record does not support her claim that she was denied a reasonable accommodation. Specifically, we find that medical evidence submitted by Complainant showed that she could not lift over 25 pounds, and had to avoid performing tasks that required excessive bending, twisting, reaching, turning, and carrying. She could also not work more than 8 hours a day. Complainant maintained that she requested these restrictions as a reasonable accommodation but was not offered one. S1 indicated, however, that Complainant was not allowed to work due to safety reasons and because the Rural Carrier Craft did not have Light Duty positions. According to S1, Complainant's restrictions could not be honored because her restrictions exceeded the essential functions she was required to perform. Complainant did not submit any evidence which showed that she was forced to work outside her restrictions, nor did she establish that there was work available within her restrictions. Therefore, we find that Complainant has not shown that she denied a reasonable accommodation.
Notice of Removal
With regard to the Agency's issuance of a Notice of Removal, assuming, arguendo, Complainant established a prima facie case of disability discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, Complainant was issued a Notice of Removal because it was believed that she did not disclose a preexisting medical condition on her employment application. We find that while Complainant denied that she had a preexisting condition, she did not provide any evidence which showed that the Agency's reason was pretext for discrimination. In this regard, we note that the two medical letters submitted by Complainant, in December 2014, indicated that she was being treated for a back problem prior to when she maintained she was injured.2 As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that she was discriminated against as alleged.
CONCLUSION
Accordingly, the Agency's FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
__6/21/18________________
Date
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 The December 11, 2014 letter from a Physician's Assistant (PA) stated that Complainant suffered from the pain for more than a year and that the pain intensified in the past few months. The December 23, 2014 letter from the PA stated that Complainant had been a patient at the office since 2008, and was seen seven times for lower back pain related issues.
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