0120152401
12-08-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chanelle B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120152401
Hearing No. 4C-400-0017-14
Agency No. 4C-400-0017-14
DECISION
On July 10, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from a final Agency decision (FAD) dated June 5, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a part-time flexible (PTF) City Carrier at the LaGrange Post Office in Kentucky.
On March 6, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her disability (walking and lifting) and age (44) when from June 2013 onward, she got less work hours than she should have received.2
The LaGrange Post Office has three delivery routes that are each about 8 hours and an auxiliary route that is about 2.5 hours. It has five city carriers - three full-time regular, each assigned to one of the three 8 hour routes, Complainant, and a City Carrier Assistant (CCA) (age 34). A full-time regular carrier is assigned to each of the 8 hour routes. Complainant and the CCA fill in as needed. Complainant had back surgery in January 2013, and was out of work from January 2013 through about May 31, 2013. She returned with restrictions of walking 15 minutes per stretch and lifting 20 pounds, and had these limitations throughout the actionable period covered by her complaint. The three full-time routes have park and loop portions that require delivery on foot that Complainant is unable to deliver because of her walking restriction.3 The auxiliary route has no park and loop delivery.
Under the applicable collective bargaining agreement (CBA), the Agency is required to "make every effort to ensure that qualified and available... [PTFs] are utilized at the straight time rate prior to assigning such work to... [CCAs] working in the same work location and on the same tour, provided that the reporting guarantee [2 hours at LaGrange] for... [CCAs] is met." ROI, Exh. 17, at 4; B Grievance Decision by Dispute Resolution Team, USPS #C11N-4C-C 14208760, at 3 - 4 (July 17, 2014) (submitted by Complainant on appeal).
In her report, the EEO counselor wrote that Complainant said she worked an average of about 20 hours weekly. Complainant wrote that despite the CBA the Agency gave the CCA assignments over her, and he got a full schedule. She stated that she repeatedly asked S2 for more hours casing, and delivering mail (that did not require walking more than 15 minutes). In denying her requests, according to Complainant, S2 replied that she could not have two people on the same route, and S1 and S2 would explain she was unable to deliver all of a route. Complainant stated S2 gave the other carriers overtime while she was available to work and not scheduled. With her complaint, Complainant submitted a statement by a union steward who wrote that in a grievance meeting with him in August 2012, S2 rhetorically asked why would she work Complainant over the CCA when he can carry faster, in July 2013, when they were discussing the distribution of work and he questioned overtime S2 responded that she would work the CCA on overtime rather than give Complainant straight time because he is faster, and in February 2014, when he asked about the CCA's excessive overtime, S2 responded that he gets paid less per hour than anyone. In her affidavit, Complainant wrote that the CCA delivers mail faster than she does.
S2 stated that Complainant is unable to deliver mail on most of the park and loop portions of the three full-time routes, and when it is not necessitated by short staffing, it is unproductive to have different carriers on the same route and carriers switching back and forth between routes. She explained that this causes extra office time to pull out territory one carrier gives to the other, extra travel time to and from the route, and extra load and unload time. In late April 2014, S2 was reassigned from being Postmaster of LaGrange to Postmaster of another post office. In her affidavit, S1 corroborated S2's account that it is unproductive to have more than one person assigned to deliver a full-time route.
Following 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). It found no discrimination.
The Agency found that Complainant did not make out a prima facie case of disparate treatment age discrimination.4 For purposes of analysis, the Agency assumed without finding that Complainant was an individual with a disability. It found that she did not make out a prima facie case of disability discrimination because she was not qualified - due to her medical restrictions she was unable to perform the essential functions of her position. The Agency found that assuming Complainant established a prima facie case of disability discrimination, as an accommodation she seemed to want the Agency to create a position for her by cobbling together pieces of full-time routes she could deliver to assign to her. The Agency found this would violate the CBA contractual rights of the Full-Time City Carriers, and the Agency was not required to create a job for Complainant under the Rehabilitation Act.
The Agency found that assuming Complainant established prima facie cases of age and disability discrimination, it articulated legitimate, nondiscriminatory reasons for its actions - Complainant was given work based on the availability of work within her medical restrictions and the needs of the service, including remaining productive. It found that Complainant did not prove these reasons were pretext to mask discrimination. The instant appeal followed.
Complainant submits two grievance Step B Decisions by the Dispute Resolution Team dated July 14, 2014, on two grievances she filed in June 2014, concerning her hours during two weeks in May 2014. This team has union and management staff. The team found that the Agency violated the CBA's requirement that the Agency make every effort to ensure that qualified and available PTFs are utilized at the straight time rate prior to assigning such work to CCAs working in the same work location and on the same tour. In both decisions, the Team found that the Agency's contention that it assigned the CCA over Complainant on City Route 2 because Complainant's medical limitations prevent her from delivering two hours thereof was without merit since the Agency could have assigned Complainant the six hours of the route within her restrictions, and the CCA could deliver the remaining two hours - meeting the CBA requirement that he be assigned at least two hours when he reports. Complainant argues that she never asked the Agency to create a permanent route for her within her restrictions. Rather, she asked that the Agency uphold the CBA - when full-time city carriers are absent, she should get priority over the CCA to work. Complainant disputes management's assessment that unless it was short staffed, it was unproductive to assign her work. She argues that management preferred to use the CCA because he delivered mail faster than her, making the office average look better and getting less complaints from the District Manager.
In opposition to the appeal, the Agency urges the EEOC to affirm the FAD.
ANALYSIS AND FINDINGS
Under the Rehabilitation Act and the Commission's regulations, an agency is required to make reasonable accommodation of 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).
For purposes of analysis, we will assume Complainant is a qualified individual with a disability. Here, Complainant does not contend that her job of PTF has a minimum or set number of hours, and the record does not suggest this. Agency management explained that it assigned the CCA over Complainant because it was more efficient to do so, i.e., when there was sufficient staffing, it wasted time to have more than one carrier deliver a full-time route because this causes extra office time to pull out territory one carrier gives to the other, extra travel time to and from the route, and extra load and unload time. While Complainant disagrees, we find management's assessment of how best to achieve office productivity credible. Complainant counters that the real reasons the Agency preferred assigning hours to the CCA hours over her was he delivered mail faster and had a lower hourly rate. Even if this is true, this supports the Agency's assessment of how to achieve maximum productivity.
Since as a PTF Complainant did not have a minimum or set number of hours, the Agency was not required by the Rehabilitation Act to assign her more hours as a reasonable accommodation. The work it did assign Complainant was within her medical restrictions.
To prevail on her disparate treatment claims, 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). 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).
The Agency explained that Complainant received her assignments within her medical limitations based on the efficiency of the service. Complainant has not shown that this explanation is pretext to mask age or disability disparate treatment discrimination.
While the Dispute Resolution Team found that the Agency violated the CBA for two weeks in May 2014 since PTFs get preference to CCAs in receiving hours, this demonstrates a violation of the CBA, not the Rehabilitation Act or the ADEA.
The FAD 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).
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
December 8, 2017
__________________
Date
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 On appeal, Complainant writes that following two favorable grievance decisions dated July 17, 2014, the Agency commenced giving her the work hours she should have received all along.
3 The grievance decisions Complainant submits on appeal indicate that the park and loop portion of one of the full-time routes is 2 hours.
4 The Agency incorrectly used the private sector "but for" standard for proving an ADEA claim rather than the federal sector "motivating factor" standard. Brenton W. v. Dep't of Transportation (Federal Aviation Administration), EEOC Appeal No. 0120130554 (Jun. 29, 2017).
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