Meghan M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 10, 20192019000089 (E.E.O.C. Apr. 10, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Meghan M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019000089 Hearing No. 460-2018-00061X Agency No. 4G-770-0195-16 DECISION On August 14, 2018, 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 August 2, 2018 final order concerning an equal employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Pearland Post Office in Pearland, Texas. 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 2019000089 On May 29, 2002, Complainant broke her right ankle on the job and filed a claim with the Office of Workers Compensation Programs (OWCP). On May 24, 2014, Complainant accepted the Agency’s modified job offer providing her with two hours of work per day five days a week casing mail at the Pearland Post Office (10 hours). She received compensation for the remaining 30 hours per week as continuation of pay benefits from OWCP. By letter dated March 1, 2016, OWCP informed Complainant and the Agency that OWCP was assigning a nurse to facilitate Complainant’s return to “recovery and return to full regular duty employment.” Beginning on April 26, 2016, Complainant refused to sign an Agency modified job offer to add six hours to each workday wherein Complainant would deliver mail via vehicle. Specifically, Complainant maintained that her medical restrictions did not allow her to deliver mail. The Pearland Postmaster relayed Complainant’s rejection and her stated reasons for doing so to district management. Thereafter, OWCP obtained a second medical opinion which was date- stamped May 5, 2016. The second medical opinion stated that Complainant could return to full duty if sedentary. However, OWCP determined that, upon further review, Complainant remained unable to deliver mail. On May 11, 2016, OWCP emailed the Agency’s Health Resources Manager for that district that the April 2016 modified job offer, referenced above, was unsuitable for Complainant absent a second medical opinion. She was not required to deliver mail and the record indicates that Complainant medically retired on January 23, 2017. On June 8, 2016, Complainant filed the instant formal EEO complaint. Complainant claimed that the Agency discriminated against her based on race (Hispanic), disability (permanent right ankle osteochondral fracture), and genetic information (arthritis) when, on May 5, 2016 and continuing, she was assigned duties outside of her medical restrictions, and she was not provided 8 hours of work. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On June 7, 2018 the Agency moved for a decision without a hearing. The AJ granted the motion and issued a decision by summary judgment in favor of the Agency.2 On August 2, 2018, the Agency issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant states that the Agency offered modified jobs to non-Hispanic mail carriers permitting them to work a 40-hours per work week whereas she was only allowed ten hours of work per week. 2 Complainant challenged a factual error in the AJ’s initial decision regarding a modified job offer. In the first decision, the AJ had mistaken a comparator’s job offer to work 3 hours as signed and accepted by Complainant on July 8, 2016. On July 30, 2018, the AJ corrected the factual error but otherwise re-issued her prior decision without a hearing. 3 2019000089 For the first time on appeal, Complainant also accused a Health Resources Manager of harassing her in reprisal for refusing to accept the modified job offer on May 6, 2016. Specifically, Complainant accused this Health Resources Manager of reporting her to the Office of the Inspector General (OIG) for working beyond her medical restrictions. Complainant provides an OIG case summary that confirmed OIG surveillance on her had started on May 13, 2016. OIG questioned management at the Pearland Post Office about Complainant and frequently watched Complainant. Eventually, the investigation closed on October 23, 2016, because OIG had found nothing of significance to report after 60 days. ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission’s regulations allow an AJ to issue a decision without a hearing when she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s regulation was patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The Supreme Court of the Unites States has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact-finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. Whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1932). An AJ’s conclusions of law are subject to de novo standard of review, whether or not a hearing was held. To successfully oppose a decision without a hearing, a complainant must specifically identify facts in dispute from evidence within the record or present opposing evidence. A complainant must also establish such disputed facts were material and genuine. Here, Complainant has failed to point out evidence in the investigative file or present other evidence that would establish a requisite factual 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. Therefore, we find that the AJ properly issued a decision here by summary judgment. GINA As an initial matter, we will address Complainant’s GINA claim. Under 29 C.F.R. § 1635.1, GINA prohibits employers from discriminating against an employee because of genetic information. 4 2019000089 GINA’s implementing regulation, 29 C.F.R. § 1635.3(c), defines genetic information to mean: (i) an individual’s genetic tests; (ii) the genetic tests of that individual’s family members; and (iii) the manifestation of a disease or disorder in family members of such individual. Here, Complainant generally accused the Agency of improperly possessing genetic information about her arthritis. She failed to carry her threshold burden because she did not establish how her arthritic condition was a factor in the Agency’s allegedly discriminatory action. Accordingly, we find as did the AJ, that Complainant failed to state a valid GINA claim. For the purposes of our analysis, we will consider Complainant’s medical conditions in the context of her disability discrimination claim. Modified Job Offer We analyze Complainant’s accepted discrimination claim as one of disparate treatment. To prevail, Complainant had to satisfy the Supreme Court’s three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant had to establish a prima facie case by demonstrating she was subjected to adverse employment action under circumstances that support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The second burden fell on the Agency to articulate legitimate and nondiscriminatory reasons for its actions. 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). Third, Complainant had to show, by a preponderance of the evidence, that the Agency’s explanations were pretexts for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant stated that the Health Resource Manager knew that the April 2016 modified job offer exceeded her medical restrictions but intentionally pressured her to accept it anyway. We disagree and find that the Agency’s error was more likely inadvertent, compounded by mis-communication in correspondence with OWCP. Based upon the foregoing, we concur with the AJ’s conclusion that Complainant was not treated adversely when offered April 2016 modified position that was later deemed unsuitable on account of her disability. Moreover, Complainant stated that the Agency had offered her African-American and Anglo- American coworkers more favorable and full-time modified job assignments, while the Agency had limited her to a ten-hour workweek out of animus towards her as a Hispanic. The Agency responded that one African-American letter carrier who had sustained a comparable foot injury, had similarly been offered a fifteen-hour work week. Regarding other comparators on limited duty with 40-hour-workweeks, the Agency explained that those letter carriers had different and lesser medical restrictions than Complainant. Nothing in the record or on appeal suggests these Agency’s rationales were pretextual. Moreover, while to addressed by the AJ, to the extent that Complainant may be also trying to assert a denial of reasonable accommodation claim, the record evidence reflects that the Agency indeed engaged in a necessary interactive process with Complainant to clarify her medical restrictions in order to appropriately assign her work. Though that interactive process, Complainant was eventually restored to the limited, part-time schedule that she worked from May 24, 2014 until her January 23, 2017 retirement. 5 2019000089 Arguments First Raised on Appeal For the first time on appeal, Complainant claimed that the Health and Resources Manager instigated an improper OIG investigation for her refusal of the modified job offer of April 2016. We will not address this particular matter in this decision because Complainant did not raise it in her formal complaint. If Complainant wishes to pursue such new claims, then she may contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. U. S. Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). CONCLUSION Based on a thorough review of the entire record and all contentions on appeal, we AFFIRM the Agency’s final decision adopting the AJ’s decision without a hearing, finding no discrimination.3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. 3 Because we affirm the Agency’s final order for the reasons discussed above, we find it unnecessary to address Agency arguments relating to possible procedural dismissal of any matters raised in the formal complaint. 6 2019000089 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 April 10, 2019 Date Copy with citationCopy as parenthetical citation