2020001399•EEOC Appeal 2020001399
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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.
2020001399 2 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.
2020001399 3 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.
2020001399 4 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.
2020001399 5 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.
2020001399 6 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).
2020001399 7 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
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