Virginia V.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 19, 20180120171723 (E.E.O.C. Dec. 19, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virginia V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120171723 Agency No. 4J460006116 DECISION 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 March 9, 2017, 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-Time City Carrier, CC-01, at the Agency’s Gary Main Post Office in Gary, Indiana. Due to a work injury in 2000, Complainant has permanent work restrictions. Due to her restrictions, she cannot deliver mail door to door, has driving restrictions, and can only walk, lift, stand, and reach above her shoulders for 3 hours a day. Since July 12, 2003, Complainant has been assigned to a Modified Letter Carrier position that does not exceed her restrictions. The position provides for: no pushing over 10 pounds for 1 hour per day; limited walking for 4 hours per day; standing and reaching above the shoulders for 3 hours per day; and no dock loading, twisting, operating a motor vehicle, lifting, squatting, kneeling or climbing. 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. 0120171723 2 On September 29, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (leg/back) when starting on June 9, 2016, and continuing, she was not permitted to work eight hours a day as a part of her reasonable accommodation. Complainant alleged in her affidavit that on various days from June 9, 2016 to September 16, 2016, she was sent home short of working eight hours. Complainant’s immediate supervisor (S1) informed her on various days to leave early and sign a PS Form 3971 because there was no work available within her restrictions. Complainant disputed that there was no work available. Complainant argued that available work was given to other employees. 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 frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed. On appeal, Complainant argues that the Agency discriminated against her based on her disability by granting accommodations to others but restricting her work. Additionally, Complainant argues she mailed a timely request for hearing but mailed it to the wrong address. 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”). As a preliminary matter, we address Complainant’s argument that the matter be remanded for a hearing. Complainant argues that she mailed the request for hearing to the wrong address via certified return receipt mail on January 9, 2017. Complainant admits she mailed her request to the wrong address. The Transmittal of Investigate File received by Complainant provided her with the proper address for the AJ and Agency. Complainant did not provide evidence to establish she sent the request for hearing to the Agency as required by 29 C.F.R. § 1614.108(h). Accordingly, Complainant failed to establish she submitted a timely request for hearing to the AJ or the Agency. Denial of a Reasonable Accommodation 0120171723 3 Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to provide reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (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, EEOC Notice No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance on Reasonable Accommodation”). An individual with a disability is “qualified” if he or 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 job duties of the employment position that the individual holds or desires. Id. § 1630.2(n). We will assume for the purposes of this decision, without deciding, that Complainant is disabled. We find that Complainant failed to establish that she was not provided a reasonable accommodation, even when she was given less than eight hours of work. Complainant does not allege that during the times she is working in her modified assignment that the duties were outside of her medical restrictions. She alleges as an accommodation she should be given eight hours of work and the Agency is distributing work within her restrictions to other employees. While a qualified individual with a disability is entitled to a reasonable accommodation, he or she is not necessarily entitled to the accommodation of choice. See Complainant v. United States Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). The Agency averred she was only given less hours when there was no work that could be completed within her restrictions. The Agency stated that when there is no work available within other employees’ restrictions, those employees are sent home as well. Moreover, none of the employees listed by Complainant have the same restrictions as Complainant and some can still perform the essential functions of a carrier. Complainant has not shown that there was work available for her within her restrictions (or a vacant funded position with 8 hours of work). Disparate Treatment We will separately examine Complainant's claim that she was provided with less than eight hours of work under a disparate treatment framework. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). 0120171723 4 The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail. Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Here, the Agency's legitimate, nondiscriminatory reason for sending Complainant home was that there was no work available within her restrictions. To meet her burden of proving that the Agency's actions were pretextual, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep't of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Complainant has failed to establish by the preponderance of the evidence that this proffered reason is a pretext for discrimination based on disability. CONCLUSION The Agency’s final decision finding no discrimination 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). 0120171723 5 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. 0120171723 6 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 December 19, 2018 Date Copy with citationCopy as parenthetical citation