Melina K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 5, 20190120172974 (E.E.O.C. Feb. 5, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melina K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120172974 Hearing No. 551-2016-00146X Agency No. 1E-981-0029-14 DECISION On September 6, 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 August 17, 2017, final order 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 Mail Processing Clerk, Level 6 at the Agency’s South DDC facility in Kent, Washington (Kent facility). On November 17, 2013, Complainant suffered a work-related injury. Complainant’s physician released her to return to work with restrictions in April 2014. Complainant provided the Agency with her medical limitations. The Plant Manager notified her that they could not identify a position within her limitations at the Kent Facility. Complainant believed that the Plant Manager was not accurate and believed that there was work available for limited duty employees. 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. 0120172974 2 On April 18. 2014, the Manager Health and Resource Management Seattle District (Manager) offered Complainant a position at the Everett Hub, in Everett, Washington (Everett facility). Complainant initially rejected the Everett position due to the distance from her house. She noted that her current commute was 45 minutes, but the Everett location was a two-hour commute. Complainant later accepted the position when she received advice from the Office of Workers Compensation Programs (OWCP). Complainant began her position at the Everett location. She said that she was having difficulties getting to Everett in a timely manner. The issue was she had to drop off her child at 6:15 a.m. However, to get to work on time, she needed to leave by 5:00 a.m. In June 2014, the Supervisor at Everett conducted an investigative interview regarding Complainant’s attendance issues. Subsequently, in July 2014, the Agency transferred Complainant to the Seattle District Office in Federal Way, Washington. Due to the transfer, the Supervisor did not subject Complainant to any discipline following the investigative interview. On October 6, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. On April 18, 2014, the Manager offered Complainant a modified job assignment in Everett, Washington; and 2. On or about June 25, 2014, the Supervisor gave Complainant an investigative interview for attendance. 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). Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment on August 3, 2017. The AJ found that Complainant failed to establish a prima facie case of unlawful retaliation, noting that the Manager and the Supervisor were not aware of Complainant’s prior EEO activity. Complainant also asserted that the Plant Manager failed to provide her with a “patchwork job” at the Kent facility. In the alternative, Complainant suggested that she should have been assigned to a facility closer to her home. However, the AJ determined that Complainant failed to show that there was a vacant funded position within her medical restrictions at the time at the Kent facility or any other facility in closer proximity to her home. Furthermore, the AJ noted that Complainant was provided with a reassignment and the Agency provided Complainant with documentation regarding the search conducted. The Agency invited Complainant to contact the Agency if she had questions or concerns, which she failed to do. The AJ concluded that Complainant failed to show that claim (1) was a violation of the Rehabilitation Act and/or constituted unlawful retaliation. 0120172974 3 As to claim (2), the AJ noted that Complainant provided no evidence that the investigative interview was due to her disability and/or prior EEO activity. Therefore, the AJ concluded that Complainant failed to demonstrate that she was subjected to discrimination based on her disability and/or prior EEO activity. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. 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 he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Denial of Reasonable Accommodation In claim (1), Complainant alleged that the Agency violated the Rehabilitation Act when, on April 18, 2014, management offered her a modified job assignment in Everett, Washington. Complainant claims that she is an individual with a disability and that the Agency failed to provide her with a reasonable accommodation. Under the Commission's regulations, an agency is required to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability, unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002). 0120172974 4 We will assume, for purposes of analysis only, that Complainant is an individual with a disability. Complainant asserted that the Agency had “patchwork” available for limited duty employees at the Kent facility. The parties engaged in a prehearing deposition. At the deposition, Complainant averred that she was not aware of work available within her limitations at the Kent facility. We note that the Agency is not required to come up with “make do” work, create “make work” jobs or transform light or limited assignments into permanent jobs to accommodate an employee's disability. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir. 1997); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122755 (Sept. 11, 2014) (employer not required to provide “make do” work or create a job for a disabled employee); Woodard v. U.S. Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003) (employer not required to transform temporary light duty jobs into permanent jobs to accommodate a disability). Therefore, we find that Complainant has not shown that there was a position to which she could have been reassigned in the Kent facility. Complainant provided no evidence that there were other positions within her limitations in a facility closer to her home. As to the position in Everett, Complainant did not assert that she could not perform the position. Complainant’s opposition to the Everett position was the commute which was unrelated to her medical limitations. As such, we find that Complainant has not shown that claim (1) constituted a violation of the Rehabilitation Act. Disparate Treatment Complainant also asserted that she was subjected to disparate treatment based on her prior EEO activity. A claim of disparate treatment based on indirect evidence is examined under the three- part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 0120172974 5 Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. As noted above, the Agency officials indicated that there was no position within Complainant’s medical restrictions at the Kent facility. As such, the Manager conducted a search and offered Complainant a position within her medical restrictions which was located in Everett, Washington. Finding that the Agency provided legitimate, nondiscriminatory reason for its action, we turn to Complainant to establish that the Agency’s action constituted unlawful retaliation. Complainant merely asserted that the Manager engaged in unlawful retaliation without providing supporting evidence. As such, we conclude that Complainant failed to establish that the alleged event constituted unlawful retaliation. Harassment In her harassment claim, in addition to the incident discussed above, Complainant alleged that the Supervisor subjected her to an investigative interview based on her attendance. To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis – in this case, her disability and/or retaliatory animus. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself. Here, as already concluded above, there is no evidence to support a finding that Complainant’s disability or prior protected activity played any role whatsoever in the decision to assign her to a position in the Everett facility. Moreover, the responsible management officials provided a legitimate, non-discriminatory explanation for providing her with the reassignment as a reasonable accommodation. As to claim (2), the record indicated that the investigative interview was due to Complainant’s attendance problems. A review of the record shows that Complainant admitted to having attendance issues due to her personal needs unrelated to her medical condition. In sum, Complainant failed to prove that the reassignment constituted a violation of the Rehabilitation Act. Further, Complainant failed to show that her disability and/or retaliatory animus played any role in the claim (2). Accordingly, we determine that Complainant failed to show that she was subjected to harassment based on her disability and/or prior EEO activity as alleged. 0120172974 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final action implementing the AJ’s decision finding no discrimination. 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). 0120172974 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 February 5, 2019 Date Copy with citationCopy as parenthetical citation