0120111456
03-04-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120111456
Agency No. 4G-770-0306-07
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's January 8, 2011 appeal from the Agency's December 10, 2010 final decision 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 in a limited duty modified assignment at the Agency's James Griffith Station (JGS) in Houston, Texas. JGS was located in Area 3 of the Houston District. Complainant did not work in her bid assignment as a Rural Carrier because, due to her medical condition, she was unable to case and deliver mail. According to a duty status report dated March 12, 2007, Complainant had the following medical restrictions: no continuous lifting or carrying more than 20 pounds; no climbing more than three times per hour; no reaching above the shoulder; no repetitive reaching activities with the right shoulder for more than 15 minutes; and no placing of the right shoulder at extreme of motion.
In an April 18, 2007 "change of schedule" letter, management notified Complainant that, effective April 21, 2007, she was to report to the General Post Office (GPO) and would receive a new assignment based on her medical restrictions. On April 21, 2007, Complainant reported to GPO. Management offered Complainant a limited duty modified assignment at GPO. The offer letter listed the modified assignment's duties (postage due, caller service, sorting mail) and physical requirements (no lifting more than 10 pounds, no overhead reaching). Complainant stated that, after reviewing the offer letter, she informed management that the three listed duties violated her medical restrictions. According to Complainant, management responded by stating that she would be put off the clock if she did not sign the offer letter.1 Complainant stated that, although management crossed out the three listed duties after she signed the offer letter,2 management caused her unnecessary stress because she was afraid of being put off the clock and possibly losing her job.
On August 27, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when:
1. On April 19, 2007, it cancelled her existing job offer; and
2. On April 21, 2007, it presented her with a new job offer outside her medical restrictions, which she was forced to sign and accept.3
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 EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The January 8, 2008 decision concluded that Complainant failed to prove that the Agency subjected her to disability discrimination as alleged. Complainant then filed an appeal on May 5, 2008.
In Complainant v. U.S. Postal Service, EEOC Appeal No. 0120082493 (September 14, 2010), the Commission vacated the Agency's final decision and remanded the matter for a supplemental investigation. Specifically, the Commission found that there was insufficient evidence in the record about whether the Agency's actions were part of the National Reassessment Process (NRP). As a result, the Commission found that it could not determine whether the claims raised in Complainant's complaint were identical to any of the claims raised in the class complaint in McConnell, et al. v. U.S. Postal Service, EEOC Hearing No.
520-2008-0053X (Agency No. 4B-140-0062-06). The Commission ordered the Agency to determine whether Complainant's complaint falls within the McConnell class complaint and then either re-issue its final decision (if it determined that the complaint does not fall within the McConnell class complaint) or subsume the complaint (if it determined that the complaint falls within the McConnell class complaint).
On December 10, 2010, after completing its supplemental investigation, the Agency determined that Complainant's complaint does not fall within the McConnell class complaint and re-issued its final decision finding no disability discrimination. Complainant then filed the instant appeal on January 8, 2011.4
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VI.A (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
McConnell Class Complaint
Commission records indicate that in 2004, the Agency began the development of the NRP, an effort to "standardize" the procedure used to assign work to injured-on-duty employees. In the class complaint, McConnell claimed that the Agency failed to engage in the interactive process during the NRP in violation of the Rehabilitation Act. Further, the Agency allegedly failed to reasonably accommodate class members during and after the process.
On May 30, 2008, an EEOC Administrative Judge (AJ) granted class certification in McConnell, which defined the class as all permanent rehabilitation employees and limited duty employees at the Agency who have been subjected to the NRP from May 5, 2006 to the present, allegedly in violation of the Rehabilitation Act. The AJ defined the McConnell claims into the following broader complaint: (1) the NRP failed to provide a reasonable accommodation (including allegations that the NRP "targets" disabled employees, failed to include an interactive process, and improperly withdraws existing accommodation); (2) the NRP creates a hostile work environment; (3) the NRP wrongfully discloses medical information; and (4) the NRP has an adverse impact on disabled employees. The Agency chose not to implement the decision and appealed the matter to the Commission. The Commission agreed with the AJ's definition of the class and the McConnell claims, as stated above. Accordingly, the Commission reversed the Agency's final order rejecting the AJ's certification of the class. McConnell v. U.S. Postal Serv., EEOC Appeal No. 0720080054 (Jan. 14, 2010).
Here, the Agency's supplemental investigation included the following documentation: (a) an affidavit from the Manager, Human Resources of the Houston District stating that the NRP actions in 2007 involved only gathering documents and creating files, not moving employees; (b) an affidavit from a member of the Houston District Assessment Team stating that no employees were reassigned to other facilities in 2007 as part of the NRP; (c) an NRP Stand Up Talk indicating that the district "will now be initiating the [NRP] for limited duty employees, whereby limited duty assignments would be included in the [NRP]" and a March 19, 2010 certification that the Stand Up Talk was given to Area 3 employees; and (d) July 13, 2009 NRP guidelines on Phase 2, Limited Duty/Implementation and Limited Duty/Work Status.
Upon review, we find no evidence in the supplemental investigation that the April 2007 actions at issue in the instant complaint were part of the NRP. Accordingly, we find that Complainant's complaint does not fall within the McConnell class complaint.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima face case of disability discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for reassigning her from JGS to GPO. Specifically, management averred that Complainant and other limited duty employees at JGS who could not case and carry mail were reassigned to GPO because there was no productive work at JGS within their medical restrictions. In addition, management averred that this repositioning relieved the budget at JGS by bringing down the 34 hours per day in miscellaneous hours carried by the station. Further, management averred that this repositioning allowed it to place the limited duty employees where they were needed or where the budget could carry them.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for disability discrimination. In her affidavit, Complainant argued that management did not order JGS employees without medical restrictions to report to GPO. In addition, Complainant argued that management was trying to force her into returning to her full duty Rural Carrier position and was pressuring her to quit her job.
Upon review, we find that Complainant failed to prove, by a preponderance of the evidence, that the Agency's reasons were pretextual. Here, the record evidence does not demonstrate that the Agency's real motivation for Complainant's reassignment was her disability rather than the stated reasons related to lack of productive work at JGS and budget. Complainant did not present any evidence to show that management's stated reasons were not credible or that management treated her differently from similarly situated non-disabled employees who did not have productive work at JGS.
Reasonable Accommodation
We assume, without so finding, that Complainant is an individual with a disability under the Rehabilitation Act. An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. See 29 C.F.R. � 1630.9. An accommodation must be effective in meeting the needs of the individual. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, General Principles, Reasonable Accommodation (as revised Oct. 17, 2002). An agency is not required to provide the reasonable accommodation that the individual wants and may choose among reasonable accommodations as long as the chosen accommodation is effective. See id. at Question 9.
Upon review, we find that the Agency did not deny Complainant a reasonable accommodation because the modified limited duty assignment she received on April 21, 2007 was within her medical restrictions. Specifically, the physical requirements listed in the offer letter (no lifting more than 10 pounds, no overhead reaching) complied with the medical restrictions listed in Complainant's March 12, 2007 duty status report (no lifting more than 20 pounds, no reaching above the shoulder). Moreover, to the extent that Complainant is arguing that the duties listed in the offer letter (postage due, caller service, sorting mail) violated her medical restrictions, the record reflects that those duties were crossed out by management. The record contains no evidence that Complainant actually performed those duties during her time at GPO. Although Complainant may have preferred to remain in her limited duty modified assignment at JGS, the Agency was not required to provide her with the limited duty modified assignment of her choice, as long the one it provided her was within her medical restrictions - which we find that it was.
Conclusion
Based on a thorough review of the record, it is the decision of the Commission to AFFIRM the Agency's final decision because the preponderance of the evidence does not establish that disability 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, 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__3/4/15________________
Date
1 Management denied making such a statement.
2 It is unclear from the record what duties Complainant performed while at GPO.
3 Complainant's work location, work hours, and off days were changed as a result of the reassignment. Complainant returned to JGS in early August 2007.
4 Complainant did not submit a statement or brief in support of the May 5, 2008 appeal or the January 8, 2011 appeal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120111456
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111456