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

Equal Employment Opportunity Commission

Aug 20, 2013

0120113491 (E.E.O.C. Aug. 20, 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
(Great Lakes Area),
Agency.

Appeal No. 0120113491

Hearing No. 440-2009-00213X

Agency No. 4J-606-0083-09

DECISION

On June 21, 2011, Complainant filed an appeal from the Agency’s May 13, 2011 final order
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 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 as a Sales & Services
Distribution Associate at the Agency’s Fort Dearborn Station in Chicago, Illinois. On October
31, 2007, the Office of Workers’ Compensation Programs (OWCP) terminated her claims for
wage loss benefits, due presumably to her having recovered from the injury that gave rise to
them. Complainant continued to work in some capacity, but then did not work from February
12 through March 15, 2009, because of pain and swelling in her right hand. She returned to
work on March 16, 2009, and asked for a modified duty assignment. Because Complainant
had not provided current medical documentation concerning her functional limitations,
management sent her home. She provided appropriate medical documentation in April 2009
and was soon thereafter granted modified duty, selling stamps. In February 2010, OWCP
accepted Complainant’s claim for recurrence of injury as of February 2009, thus making
Complainant eligible for wages lost between March 16, 2009, and the date she returned to
work in April 2009.

0120113491

2

On April 30, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability when she was denied reasonable
accommodation. 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 April 30, 2010
motion for summary judgment and issued a decision on April 18, 2011.

In her decision, the AJ found it undisputed that Complainant asked for an accommodation; that
Complainant’s impairments were not obvious; and that she failed to provide sufficient
documentation of her current medical restrictions until April 16, 2009, whereupon the Agency
identified a modified position, and Complainant assumed it on April 29, 2009. Given these
undisputed facts, the AJ concluded there was no basis to hold a hearing because no reasonable
fact finder could conclude that the Agency had denied Complainant reasonable
accommodation. The AJ also noted that there was simply no evidence to dispute the Agency’s
explanation for sending her home on March 16, 2009. 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.

Upon review of the record, we discern no basis to disturb the AJ’s decision. Contrary to
Complainant’s claim that management should have relied upon prior documentation of her
restrictions, we decline to find that the Agency was obligated to honor medical documentation
from 2006 - 2007 in connection with a 2009 reasonable accommodation request. In reaching
this conclusion, we find that OWCP’s 2007 termination of wage loss benefits is sufficient
evidence of a change in Complainant’s impairment status. In 2009, the Agency was entitled to
obtain a current assessment of Complainant’s restrictions in order to determine if there was
work available within those restrictions. As the AJ noted, within days of submitting
appropriate documentation, Complainant was offered modified work.

To the extent Complainant is claiming disparate treatment in that she was denied light duty, we
note it undisputed that she was instructed to request light duty in writing and she refused to do
so. Complainant explains that she should not have had to request light duty in writing. Even
0120113491

3
accepting this as true, it does not excuse Complainant’s failure to follow instructions, nor does
it establish that the Agency’s explanation for sending her home is a pretext designed to conceal
discriminatory animus. For these reasons, 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
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.
0120113491

4

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 20, 2013
Date