U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lilla B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120180663
Agency No. 4E640002017
DECISION
On December 3, 2017, 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
November 20, 2017, final action 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier
Associate, RA-05, at the Agency’s Griesmer Annex facility in Springfield, Missouri.
On March 23, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of disability (Neck Injury and Depression) when:
1. From July 2016 through January 27, 2017, management entered Complainant’s
leave incorrectly;
2. From January 27, 2017, to February 25, 2017, Complainant was denied light duty;
and,
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.
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3. On February 25, 2017, management attempted to violate Complainant’s
restrictions.
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 (AJ). When Complainant did not request a
hearing within the time frame2 provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
action (FAD) pursuant to 29 C.F.R. § 1614.110(b). The action concluded that Complainant
failed to prove that the Agency subjected her to discrimination as alleged. Specifically, with
respect to claim 1, the FAD found that the Agency articulated a legitimate, nondiscriminatory
reason for its action when Complainant’s Supervisor (S: no claimed disability) said that
Complainant was not authorized to take leave because she was not in a “leave earning status.”
The FAD further found that Complainant did not establish that the Agency’s articulated reason
was a pretext. With regard to claims 2 & 3, the FAD found that Complainant was offered a
limited duty assignment but that she declined it, and that Complainant’s request for a reasonable
assignment was still pending at the time of the FAD. The Agency therefore concluded that no
discrimination occurred.
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”).
Disparate Treatment
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
2 Complainant did not submit a hearing request to the Agency until after the Agency had issued
its Final Action, and well after the 30-day deadline.
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Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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 Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that
Complainant established her prima facie case of discrimination.
We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
With regard to claim 1, S averred that Complainant was not “in leave earning status” at the time
and hence no leave was entered. With regard to claim 2, S averred that Complainant requested
limited duty, not light duty and that none was available. The Agency having articulated
legitimate nondiscriminatory reasons for its action, the burden shifts back to Complainant to
establish, by a preponderance of the evidence, that the Agency’s reasons were not its true
reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas.
Following a review of the record we find that Complainant has failed to meet this burden.
With regard to claim 1, Complainant maintains that she should have been allowed to enter Leave
Without Pay (LWOP) or IOD (Injured on Duty) but instead management told her to enter sick
leave. When asked why she disagreed with the Agency’s articulated response, Complainant
referenced copies of a Step 2 Grievance that she had filed on the matter. The Grievance was
settled and the settlement notice states:
After discussing your case with higher level Union officials your case has been
withdrawn from the Grievance process as no violation has occurred. You
provided a copy of a letter from your doctor dated November 17, 2016 stating you
could return to work without restrictions. Regardless if you have an appeal on
your claim, until the case is approved again your leave will not be coded as IOD.
You may use your own leave in the interim or LWOP in lieu of sick leave. At the
time of this grievance you did not have the 1,250 actual work hours to qualify
under FMLA, although limited duty work applies to the one year to receive
protection under FMLA, only the actual work hours apply to the 1,250 work
hours needed in the previous year to qualify for FMLA protection.
Following a review of the record we find that Complainant has not met her burden of
establishing, by a preponderance of the evidence, that the Agency’s articulated reason for its
actions are pretextual, or that the Agency harbored any animus towards her protected bases. We
note that Complainant has not shown that similarly situated coworkers outside of her protected
bases were allowed to enter IOD for their leave while not having accumulated 1,250 work hours.
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Even assuming arguendo that S should have entered Complainant’s leave differently, something
Complainant has not established, Complainant has not shown that S’s actions were based on her
disability.
With regard to claim 2, Complainant avers that two other similarly situated Rural Carriers were
“working downtown” presumably in non-carrier positions, at the time Complainant was denied
light or limited duty. We note, however, that Complainant did not establish that either
comparator was similarly situated with herself. Specifically, Complainant did not identify the
supervisor of the first comparator, while identifying someone other than S as the supervisor for
the second comparator. Nor has Complainant otherwise shown that she was subjected to
discrimination based on disability. We note in this regard that the record shows that Complainant
was offered a limited duty position in February 2017 but declined the offer, indicating that
Management was willing to offer limited duty once it became available.
Denial of Reasonable Accommodation
Claims 2 and 3 may be analyzed under a denial of reasonable accommodation theory. 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). Upon receipt of a request for accommodation, the
burden is on a “covered entity to initiate an informal, interactive process with the individual with
a disability in need of the accommodation.” 29 C.F.R. §1630.2(o)(3).
The record establishes that Complainant is an individual with a disability. The record shows that
Complainant has a 20-pound lifting restriction, which the Commission has held may constitute a
substantial limitation in the major life activity of lifting. See Peebles v. United States Postal
Service, EEOC Appeal No. 01984745 (March 8, 2002) (holding that complainant was an
individual with a disability based on her 20 pounds lifting restriction). Also see Hebda v.
Department of the Interior, EEOC Appeal No. 01986569 (July 13, 2001).
We next need to establish if Complainant is a “qualified individual with a disability.” 29 C.F.R.
§1630.2(m). A “qualified individual with a disability” is one who satisfies the requisite skill,
experience, education, and other job-related requirements of the employment position and who,
with or without reasonable accommodation, can perform the essential functions of such position.
Id. The position description for the Rural Carrier Position lists as the “functional purpose:”
“Cases. delivers. and collects mail along a prescribed rural route using a vehicle.” In addition,
under Duties and Responsibilities the Position Description states “Delivers mail to customers
along a prescribed route and on a regular schedule by a vehicle.” Thus, driving a vehicle was one
of the essential functions of Complainant’s position.
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Complainant’s own medical records, however, show that on January 3, 2017, her physician
stated “No more than 4 hour shifts and only casing her mail with maximum lifting of 20 lbs. She
may not drive or walk a delivery route.” Furthermore, the record shows that management sought
to comply with Complainant’s medical restrictions by offering her a Limited3 Duty position that
accommodated her restrictions but made no mention of the fact that she should not drive a
vehicle. Complainant declined to accept the offer because it did not explicitly state that she was
not to drive. Complainant next submitted a request for a reasonable accommodation and
mentioned that she was “unable to drive postal truck to deliver mail, cannot turn neck to clear
traffic or look from postal totes to mail boxes continuously.” The record thus establishes that
Complainant could not perform one of the essential functions of her position and hence we find
that she is not a qualified individual with a disability.
Despite Complainant not being a qualified individual with a disability, the Agency sought to
accommodate her with a limited duty position, which Complainant declined. Complainant then
made a formal request for a reasonable accommodation on or about April 18, 2017. Complainant
finally received a denial of her formal request on August 16, 2017, on the grounds that she was
not a qualified individual with a disability. While we note that the Agency should not have taken
so long to respond, we nevertheless agree that Complainant is not a qualified individual with a
disability, and we therefore find that Complainant was not denied a reasonable accommodation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not shown that discrimination
occurred, and we AFFIRM the Agency’s Final Action.
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.
3 The record contains no evidence besides Complainant’s bare assertion that she ever claimed
Light Duty and S averred that Complainant requested Limited Duty.
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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
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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
July 2, 2019
Date
