Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Aug 14, 2015

01-2013-0525-0500 (E.E.O.C. Aug. 14, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120130525

Hearing No. 560-2012-00146X

Agency No. 4J-630-0121-11

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
September 27, 2012 final Agency decision (FAD) 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the
Agency’s Post Office in Osage Beach, Missouri. Complainant suffers from Bipolar II Mood
Disorder. Complainant was hospitalized in June 2010 due to work-related stress, and she filed
a workers’ compensation claim with the Office of Workers’ Compensation Programs (OWCP).
Complainant was cleared to return to work on July 27, 2010, but her doctor recommended that
she work at a slower-paced office. On August 9, 2010, Complainant returned to work, and
management temporarily assigned her to an Officer-in-Charge (OIC)/Acting Postmaster
position at the Olean Post Office. This assignment was subsequently extended to January 1,
2011. Complainant continued working at the Olean Post Office until the Osage Beach Acting
Operations Manager (M1) informed Complainant on or around May 19, 2011, that the Olean
Postmaster would be returning from her detail assignment and that Complainant would return
to work at the Osage Beach Post Office.
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On May 17 and 18, 2011, M1 offered to assign Complainant to an assignment performing city
route inspections in Jefferson City or Columbia, but Complainant refused the assignment
claiming that both assignments were too far away. On May 31, 2011, an OWCP case worker
informed Complainant that her second opinion doctor had reported her as “back to baseline”
and that she could perform her assigned duties, but that she should work in the “least
restrictive environment available.” Agency officials had scheduled a meeting for June 1, 2011
to discuss Complainant’s restrictions; however, the meeting was cancelled, and Complainant
was told to report to Osage Beach on June 6, 2011 because she had been released to full duty.
On July 5, 2011, Complainant was placed on medical leave.

On September 14, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability when she was informed that her light duty
OIC assignment was ending and she was returned to her job as Postmaster at Osage Beach
which violated her medical restrictions, and she learned that Agency management had
neglected to respond to OWCP regarding her claim and still had not responded to OWCP's
continued requests.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge. Complainant initially requested a
hearing, but later withdrew that request. Consequently, the Agency issued a FAD pursuant to
29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially determined that Complainant failed to show that she was a
qualified individual with a disability. The record revealed that management accommodated
Complainant’s impairment for a nine month period from August 9, 2010 to May 19, 2011 by
assigning her as an OIC at the Olean Post Office. This assignment was available because the
permanent Postmaster was detailed to another facility. However, when the permanent
Postmaster returned to the Olean Post Office, Complainant had to be reassigned. Management
could not permanently assign Complainant to the Olean Post Office as the Postmaster because
the position was not vacant. When Complainant was notified that her detail assignment as OIC
at the Olean Post Office was being terminated, Complainant was offered and declined
assignments doing route inspections and as an OIC in the Linn Creek Post Office.
Complainant did not provide any medical documentation to support her contention that these
assignments were medically unacceptable. In addition, management provided Complainant
with a list of vacant positions in September 2011; however, Complainant failed to respond to
management's request that she identify her preferred office from the list. Between the

1 The Agency dismissed one additional claim pursuant to 29 C.F.R. § 1614.107(a)(2) as
untimely. Complainant raised no challenges to the dismissal on appeal; therefore, the
Commission will not address this claim in this decision. In addition, the Commission
AFFIRMS the Agency’s dismissal in the FAD of Complainant’s claim regarding management’s
processing of her OWCP claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim.
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termination of her assignment as the OIC in Olean and her return to her position as the
Postmaster of Osage Beach, Complainant did not identify one vacant funded position that
would have accommodated her medical needs.

On July 5, 2011, Complainant went out on medical leave, and her latest medical
documentation stated that she was still not able to work through February 21, 2012. During
her absence, the Agency's attorney reached out to Complainant’s representative and asked that
Complainant look for a job that she wanted in her own pay scale or to find a smaller office into
which she could downgrade. In addition, the Labor Relations Specialist communicated with
Complainant and provided her with a list of vacant lower grade positions that were available.
However, Complainant failed to identity her preference from the list as instructed. As a result,
the Agency concluded that management had not denied Complainant reasonable
accommodation in violation of the Rehabilitation Act. Further, the Agency determined that
Complainant failed to show that management’s reasons for its actions were pretextual. As a
result, the Agency found that Complainant had not been subjected to discrimination as alleged.
Complainant filed the instant appeal without submitting any arguments or contentions in
support.

ANALYSIS AND FINDINGS

Denial of Reasonable Accommodation

Under 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 it
can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o),
1630.2(p). A qualified individual with a disability is an “individual with a disability” who
satisfies the requisite skill, experience, education and other job related requirements of the
employment position such individual holds or desires and, with or without reasonable
accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m).

Here, the record evidence establishes that Complainant was unable to perform certain of the
essential functions of the position due to the level of stress of the position and, therefore, she
was not qualified for the Postmaster position at Osage Beach. Complainant did not identify
any effective accommodations that would have enabled her to perform the essential functions
of the Osage Beach Postmaster position. The Agency initially placed Complainant in a
temporary assignment at the Level 11 Olean Post Office from August 2010, until the
permanent Postmaster returned from her detail assignment in May 2011. Complainant
requested to stay in the OIC assignment in Olean or to downgrade to lower-level office as an
accommodation. Complainant’s February 2011 and March 2011 medical documentation
indicated that she could work an eight-hour day, but she needed to work in the “least
restrictive environment at workplace on permanent basis.” ROI, Ex. 3. Agency management
subsequently offered Complainant an assignment performing route inspections in Jefferson City
(48 miles away) and Columbia (89 miles away); however, Complainant refused those
assignments. ROI, Ex. 10. In addition, management offered Complainant an OIC position at
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the Level 16 Linn Creek Post Office, but Complainant believed that the work there would be
too stressful as well. ROI, Ex. 14. Complainant failed to produce any evidence that these
offered accommodations would have violated her medical restriction of a “least restrictive
environment” or that that they would have been ineffective. In addition, Complainant did not
identify a vacant funded position for which she was qualified and to which she could have been
reassigned. Accordingly, the Commission finds that Complainant failed to show that the
Agency violated the Rehabilitation Act.

Disparate Treatment

Finally, to the extent that Complainant is alleging disparate treatment, the Commission finds
that as discussed above, the Agency has articulated legitimate, nondiscriminatory reasons for
its actions. Further, the Commission finds the record is devoid of any evidence that
Complainant's disability was an unlawful factor in the Agency's actions. At all times, the
ultimate burden remains with Complainant to demonstrate that the Agency's reason were not
the real reasons, and that the Agency acted on the basis of discriminatory animus.
Complainant has failed to carry this burden.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
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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 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 Complainants 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

August 14, 2015
Date