Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Aug 9, 2013

0120113363 (E.E.O.C. Aug. 9, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120113363

Hearing No. 430-2010-00274X

Agency No. 1K-271-0003-10

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s June 2, 2011 final order concerning his 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Processing and Distribution Center in Greensboro, North Carolina. In
June 2008, Complainant was issued a Notice of Removal, but was later restored back to work
after the union filed a grievance. In July 2009, Complainant returned to work as a Clerk in the
Air Mail Room (AMR).

On July 24, 2009, Complainant provided a doctor’s note indicating that he could not lift more
than 30 pounds. Complainant’s supervisor (S1) provided Complainant a light duty assignment
performing his usual Clerk duties, but restricting him from lifting mail that weighed more than
30 pounds. On September 4, 2009, Complainant provided a second doctor’s note stating that
he should avoid lifting more than 30 pounds and that he should be allowed to rest periodically
and to sit for 10 minutes every hour. S1 again provided Complainant a light duty assignment
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in accordance with his restrictions. Complainant was later awarded a bid position in the
Manual Operations Section on September 26, 2009.

On January 15, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), color (dark-
skinned), disability, age (52), and in reprisal for prior protected EEO activity when:

1. He was denied reasonable accommodation and his back condition was aggravated;
and

2. He became aware that $231.05 had been taken out of his paycheck for Pay Period
20 and $43.39 was taken out of his paycheck for Pay Period 21.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the
case granted the Agency’s motion for summary judgment and issued a decision on May 24,
2011.

In the decision, the AJ determined that, assuming arguendo that Complainant is a qualified
individual with a disability, he could not establish that the Agency failed to provide him a
reasonable accommodation. The evidence showed that Complainant was returned to work
without any restrictions on July 11, 2009. Complainant claimed that after he returned to work
his back impairment was aggravated by lifting and dumping the priority packages.
Complainant asserted that he told the Distribution Operations Manager that he was concerned
that working in automation may aggravate his impairments and the manager told him to see his
doctor and get a note if he had concerns. After Complainant provided S1 with a note from his
doctor, his job was modified to meet his restrictions. When Complainant provided a second
note from his doctor, his job was again modified to meet his new restrictions. As a result, the
AJ concluded that Complainant had not provided any evidence that the Agency failed to
provide him a reasonable accommodation.

Next, Complainant alleged that the Agency discriminated and retaliated against him by
assigning him to the AMR. The AJ noted that Complainant had no restrictions when he
returned to work in July 2009. When Complainant provided management with his medical
documentation indicating his medical restrictions, he was provided light duty assignments that
incorporated his restrictions. The AJ found that Complainant had not provided any evidence
that he was required to work outside of his restrictions. As a result, the AJ concluded that
Complainant could not establish that the Agency discriminated or retaliated against him when
he was assigned to the AMR.1

1 To the extent that Complainant alleged that the Agency’s failure to send him for a fitness-for-
duty examination violated his arbitration award, the AJ determined that the proper forum to
raise that allegation was through the grievance process, not the EEO process. To the extent

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Regarding his paychecks, the AJ assumed arguendo that Complainant established a prima facie
case of discrimination and reprisal and found that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, Agency officials confirmed that the
payroll deductions were related to health insurance benefits that were paid by the Agency while
Complainant was on Leave Without Pay (LWOP) status during the arbitration process. The
evidence showed that the deductions were automatically generated at the Agency’s Accounting
Service Center in Eagan, Minnesota. The AJ concluded that Complainant had presented no
evidence that the Agency’s reasons for its actions were pretextual. As a result, the AJ found
that Complainant had not been subjected to discrimination or reprisal as alleged.

The Agency subsequently issued a final order adopting the AJ’s decision. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant claims that the Agency failed to give him a fitness-for-duty
examination and is still holding up his back pay. Complainant further argues that he
aggravated his back and neck injuries working in the AMR. Finally, Complainant alleges that
M1 gave false statements in his affidavit. Accordingly, Complainant requests that the
Commission reverse the final order.

ANALYSIS AND FINDINGS

The AJ's Issuance of Summary Judgment

The Commission's regulations allow an AJ to grant summary judgment 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.

that Complainant challenges this determination on appeal, the Commission finds that the AJ’s
dismissal was proper as this claim constitutes an impermissible collateral attack on another
proceeding.
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Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ's issuance
of summary judgment was appropriate. The Commission finds that, even assuming all facts in
his favor, a reasonable fact finder could not find in Complainant's favor, as explained below.

Denial of Reasonable Accommodation

The Rehabilitation Act of 1973 prohibits: discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable
accommodation, Complainant must show that: (1) he is an individual with a disability, as
defined by 29 C.F.R. 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29
C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”).

Under the Commission's regulations, an Agency is required to make reasonable
accommodation to 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.
See 29 C.F.R. §§ 1630.2 (o) and (p). The Commission shall assume without deciding (for the
purposes of this decision) that Complainant is a qualified individual with a disability.

The Commission finds that there is no evidence that the Agency denied Complainant
reasonable accommodation in violation of the Rehabilitation Act. The record reveals that
Complainant returned to work with no restrictions in July 2009 and was assigned duties in the
AMR, including lifting, throwing, and separating priority packages. ROI, at 160.
Complainant subsequently submitted medical documentation and requested light duty after he
claimed he aggravated his back condition. Id. at 249. S1 granted Complainant’s request and
issued him a light duty assignment in accordance with his restrictions on July 29, 2009. Id. at
250. Complainant submitted new medical documentation with additional restrictions on
September 4, 2009. Id. at 251. On September 8, 2009, Complainant signed a new light duty
assignment in accordance with his new restrictions. Id. at 252. On September 26, 2009,
Complainant was the successful bidder for a position in Manual Operations Section where he
was able to sit and case mail. Id. at 164, 306.

The Commission finds that there is no evidence that management assigned Complainant any
duties that violated his restrictions. While Complainant may not have been offered the
reasonable accommodation of his preference, an employer is not required to provide the
precise accommodation the employee or applicant wants, so long as the accommodation offered
is an effective one under the circumstances of the situation. See U.S. Airways v. Barnett, 535
U.S. 391, 400 (2002). Complainant has not offered any evidence that the accommodations
provided to him were ineffective. Accordingly, the Commission finds that Complainant failed
to show that the Agency denied him reasonable accommodation in violation of the
Rehabilitation Act.

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Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination and reprisal, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to his assignment at the AMR, the
record reveals that an arbitrator restored Complainant back to work in May 2009. ROI, at
313. On July 11, 2009, Complainant returned to work with no restrictions and was assigned
duties in the AMR. Id. at 64, 248. As discussed above, Complainant twice submitted medical
documentation and requests for light duty and each time management granted his requests in
accordance with his restrictions. There is no evidence that Complainant was assigned duties
that violated his restrictions.

Regarding the paycheck deductions, a supervisor at the Agency’s Eagan Accounting Service
Center stated that the Agency’s accounting system automatically generates invoices and sends
monthly statements regarding debts. ROI, at 215. Complainant’s Pay Period 20 and 21
paychecks included involuntary deductions to offset invoices which were created for
Complainant’s share of health benefit premiums paid while he was in a LWOP status. Id. at
215, 307-12. Complainant admitted that he was aware that the deductions were for health
insurance payments made by the Agency while he was in LWOP status during the arbitration
process. Id. at 134.

Because the Agency proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256.

Construing the evidence in the light most favorable to Complainant, the Commission finds that
the record is devoid of any evidence that Complainant's protected classes were factors in any
of the Agency's actions. At all times, the ultimate burden remains with Complainant to
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demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of discriminatory or retaliatory animus.
Complainant failed to carry this burden. As a result, the Commission finds no basis to disturb
the AJ's summary judgment decision finding that Complainant was not subjected to
discrimination or reprisal.

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 order, because the Administrative Judge’s grant of summary judgment was
appropriate and a preponderance of the record evidence 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,
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
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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

August 9, 2013
Date