EEOC Appeal 2020001399

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kimbery H.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 2020001399
Hearing No. 471-2017-00012X
Agency No. 4J-481-0085-16
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 October 24, 2019 final
order concerning an 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 Carrier Technician at the Agency’s North
End Post Office in Detroit, Michigan.
On June 14, 2016, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against her based on disability (right knee, back, and neck injury) and in reprisal
for prior protected EEO activity (Complainant filed prior EEO complaints) when:
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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1. 	beginning on March 3, 2016, and continuing (dates to be specified), Complainant
was not permitted to work an eight-hour day; and
2. 	on March 25, 2016, Complainant was charged Absent Without Leave (“AWOL”)
After its investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of right to request a hearing before an Equal Employment Opportunity
Commission (EEOC or Commission) Administrative Judge (AJ).2 Complainant timely requested
a hearing. On June 25, 2018, the Agency filed a motion for summary judgment. After receiving
a response from Complainant, the AJ issued a decision, by summary judgment in favor of the
Agency on September 25, 2019.
On October 24, 2019, the Agency subsequently issued a final order adopting the AJ’s finding of
no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 	EEOC’s decision
without a hearing regulation follows the summary judgment procedure from federal court. Fed.
R. Civ. P. 56. 	The U.S. Supreme Court held summary judgment is appropriate where a judge
determines no genuine issue of material fact exists under the legal and evidentiary standards.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment
motion, the judge is to determine whether there are genuine issues for trial, as opposed to
weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the
non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s
favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for
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 “material” fact has the potential to affect the
outcome of a case.
On appeal, Complainant, through counsel, does not submit any statements. 	However, 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.
2 The record indicates that Complainant’s formal complaint included two additional claims
which the Agency dismissed on procedural grounds. The AJ indicated that Complainant filed a
July 24, 2016, motion to reinstate the dismissed claims. However the AJ denied Complainant’s
motion because challenges to these dismissed claims were to be filed no later than February 16,
2018. 	Nevertheless, Complainant does not on appeal dispute the dismissal of these claims.
Therefore, we need not address them further in our discussion below.

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Complainant has not pointed with any specificity to particular evidence in the investigative file
or other evidence of record that indicates such a dispute.
For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 	For a complainant to prevail,
he or she 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. 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, 	non-discriminatory 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, a 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).
This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, 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 Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant testified that she injured her back and neck in January 2011, she injured her right
knee in May 2013, and she had knee surgery on December 15, 2015. Because of the back and
neck injuries, Complainant stated that she was restricted from lifting over ten pounds. She was
also limited to climbing stairs no more than three hours a day. However, Complainant indicated
that when she returned to work, on February 24, 2016, following her knee surgery, she was
restricted to climbing stairs no more than one hour a day.3 	Complainant asserted that
management honored her work restrictions until March 3, 2016, but stopped accommodating her
because there was no available work, within her work restriction. 	Consequently, Complainant
explained that on June 17, 2016, she was taken off work, but she hoped to return to work on or
after July 29, 2016.
3 We presume for purposes of analysis only, and without so finding, that Complainant is an
individual with a disability.

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Complainant clarified that her knee injury had not yet been accepted by the Office of Workers’
Compensation,4 but Complainant indicated that she had been placed on light duty.5
Our review of the record indicates that the AJ correctly determined that the Agency provide
legitimate, non-discriminatory actions for its actions.
Claim 1 – 8 Hour Work Day
Complainant testified that before she returned to work on February 24, 2016 until March 3, 2016,
her immediate supervisor (“S1”) and another supervisor (“S1a”) provided her work within her
work restrictions while she was on light duty. However, S1a testified that S1 and the post office
manager (“M1”) were responsible for determining how many hours Complainant worked.
Nevertheless, Complainant explained that collectively, management would allow her to deliver
part of her route, or would find other duties for her to perform when her assigned duties
exceeded her work restrictions – climbing stairs for more than one hour. 	Complainant further
asserted that after her current supervisors spoke with her prior station manager (“PM”),
management no longer provided her with work and gave what work she would have been
assigned to her to other regular carriers and city carriers. Consequently, Complainant stated that
from February 24, 2016 through June 16, 2016, she was not allowed to work eight hours or
overtime even though she asserted that there was work available for her to complete.
M1 explained that Complainant’s city carrier position specified that she setup and deliver routes
daily which required the following activities: carrying 70 pounds 1 to 8 hours a day; standing 1
to 8 hours a day; sitting 1 hour a day; walking 1 to 6 hours a day; twisting 1 to 3 hours a day;
pushing/pulling 1 to 3 hours a day; simple grasping 1 to 8 hours a day; reaching above the
shoulder 1 to 8 hours a day; driving a vehicle 1 to 8 hours a day; and working in different
temperatures. Both M1 and S1 acknowledged that Complainant had work limitations to carry 1
hour of delivery (including steps) and not to lift more than ten to fifteen pounds which prevented
her from carrying her entire work assignment.
Both M1 and S1 testified that they attempted to accommodate Complainant’s work restriction by
“piecing an assignment together to give as close to 8 workhours as possible.” 	However, S1
explained that Complainant was unwilling to complete the work she was assigned that was
within her work restrictions. 	Specifically, M1 and S1 indicated that they offered Complainant
the opportunity to work at another post office where she could scan mail for 8 hours, but
Complainant rejected this offer.
4 The record indicates that on January 25, 2016, the OWCP determined that Complainant was
ineligible to receive compensation for her knee condition because the OWCP determined that her
knee condition was not work related.
5 The record supports that Complainant requested temporary light duty assignment on March 2,
2016. 	Complainant testified that her light duty assignments are related to her neck and back
injuries.

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Additionally, 	M1 	explained 	that 	she 	contacted 	the 	District 	Reasonable 	Accommodation
Committee (“DRAC”) for assistance. The record reflects that on April 19, 2016, M1 requested a
DRAC for Complainant because Complainant was on light duty, Complainant was requesting to
work 8 hours a day, and the post office did not have 8 hours of available work that was within
Complainant’s work restriction. The record further reflects that a DRAC meeting was scheduled
for June 15, 2016, and Complainant was instructed to provide medical documentation to assess
what reasonable accommodations she would need given her medical condition. 	However, the
DRAC 	chairperson 	confirmed 	that 	Complainant 	failed 	to 	provide 	the 	required 	medical
documentation. 	Consequently, Complainant’s reasonable accommodation request related to her
knee injury was administratively closed.
We note that PM testified that Complainant filed a prior EEO complaint against him in May
2014, but he was absent from the post office from January 23, 2016 through June 2016.
Nevertheless, PM explained that employees in light duty status, such as Complainant, are
assigned work based on their work restriction on an “as needed” basis. 	PM clarified that the
Agency is not required to create work for an employee who has reached his/her work limitations.
Rather, PM indicated that the duties assigned vary day to day and assignments are based on
availability and cost to the Agency.
We further note that M1 and S1a denied having any knowledge of Complainant’s prior EEO
activity. S1 also denied that Complainant’s prior EEO activity was a factor in assigning
Complainant work. 	Rather, S1 indicated that he believed that Complainant filed the instant
complaint after he refused Complainant’s February 2016 request to indicate on her disability
insurance papers that there was no available work for her at the post office.
Claim 2 - AWOL
Complainant stated that on March 24, 2016, S1 instructed her to pick up additional mail express
assignments. Complainant explained that she informed S1 that she could not deliver more than
seven 	express 	mail 	assignments 	she 	already 	had 	by 	deadline. 	However, 	S1 	informed
Complainant that if she could not complete her assignment by noon, she would be sent home.
Complainant explained that on the following day, on March 25, 2016, she requested leave
because 	she 	was 	“emotionally upset.” 	S1, 	however, 	would 	not 	accept 	her 	paperwork.
Complainant therefore left the office before 9:00 am and called in sick the following day on
March 26, 2016.
S1 acknowledged that he charged Complainant AWOL because she failed to follow instructions,
abandoned her assignment, and walked out.
We conclude that neither during the investigation nor on appeal has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on Complainant’s disability or reprisal for prior
protected EEO activity.

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CONCLUSION
The Agency's final order implementing the AJ's finding of no discrimination, without a hearing,
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).

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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
September 30, 2020
Date