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

Equal Employment Opportunity Commission

May 1, 2013

0120121859 (E.E.O.C. May. 1, 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
(Eastern Area),
Agency.

Appeal No. 0120121859

Hearing No. 430-2009-00184X

Agency No. 4C-250-0082-08

DECISION

On March 19, 2012, Complainant filed an appeal from the Agency’s February 16, 2012 final
order concerning her 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 deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked a light duty
assignment in the Carrier craft at the Agency’s Post Office in Salem, Virginia. Originally a
City Carrier, Complainant had been working light duty for several years due to her physical
impairments and consequent medical restrictions. In Fall 2007, the District Reasonable
Accommodation Committee (DRAC) had met with Complainant to try to identify reasonable
accommodation(s) that would have enabled Complainant to perform the essential functions of
her Carrier bid position. The DRAC was unsuccessful due to the severity of Complainant’s
restrictions. The DRAC noted that what Complainant wanted, to have other employees
perform the essential functions she could not, was not a form of reasonable accommodation.

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In August 2008, after a route inspection eliminated the auxiliary route that Complainant cased
and due to an overall decline in mail volume, management informed Complainant that her light
duty assignment, which was set to expire, would not be renewed. She subsequently received a
“letter of options,” explaining that she could resign or apply for disability or regular
retirement.

On October 14, 2008, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (White), sex, disability, and age when:

1. she was denied reasonable accommodation; and
2. she was sent an “options letter.”

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 (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for summary judgment
and issued a decision on February 2, 2012. 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

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). 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.

Denial of Reasonable Accommodation

In order to establish entitlement to coverage under the Rehabilitation Act, Complainant must
prove that she is a qualified individual with a disability. A qualified individual with a disability
is an individual with a disability who can perform the essential functions of the position she
holds or desires, with or without accommodation. Assuming arguendo that Complainant is an
individual with a disability, we find that she failed to prove that she was a qualified individual
with a disability within the meaning of the Rehabilitation Act. In reaching this conclusion, we
find it undisputed that Complainant could not perform the essential functions of her Carrier
position with or without reasonable accommodation. Further, even with the DRAC’s
assistance, Complainant did not identify a vacant funded position for which she was qualified
and to which she could have been reassigned. It is her burden to do so. What Complainant
wanted was for the Agency to convert a light duty assignment into a permanent position. The
Rehabilitation does not require the Agency to do so. We conclude that Complainant was not
entitled to coverage under the Rehabilitation Act.
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Disparate Treatment

For Complainant to prevail on a claim of disparate treatment, 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. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Upon review
of the record, we find that Complainant was not similarly situated to any of the comparative
employees she identified. Some worked in different crafts and at different stations; some were
retired; and some could perform the essential functions of their positions. The significant
differences in their circumstances undermine an inference of sex, race, or age discrimination
with regard to the provision of light duty assignments, and there is no other evidence sufficient
to support one. Moreover, with regard to the “letter of options,” this was provided consistent
with Agency policy, and there is no evidence from which a reasonable fact finder could
conclude it was unlawfully motivated.

CONCLUSION

Based on a thorough review of the record, we find that the AJ’s grant of summary judgment
was appropriate. The facts that Complainant argues are in dispute are not material. We
discern no basis to disturb the AJ’s decision, and we AFFIRM the Agency’s final order.

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
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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

May 1, 2013
Date