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

Equal Employment Opportunity Commission

Jun 20, 2013

0120122238 (E.E.O.C. Jun. 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. 0120122238

Hearing No. 440-2011-00030X

Agency No. 1J-607-0024-10

DECISION

On April 26, 2012, Complainant filed an appeal from the Agency’s April 4, 2012 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 held a bid job as a Mail
Handler but had worked in a modified position at the Agency’s Cardiss Collins Processing &
Distribution Center in Chicago, Illinois since 2000. Complainant performed sedentary work
on Tour 2, the daytime shift. In 2009, due to the declining mail volume, Tour 2 was
“compressed,” Complainant’s bid was abolished, and Complainant was assigned to a similarly
modified position on Tour 3, effective January 3, 2009.

Complainant did not want to work on Tour 3. She requested reasonable accommodation in the
form of a daytime shift on Tour 2 and submitted doctors’ notes in support of the request. The
notes explained that Complainant had difficulty seeing at night; that she tires easily; that the
daytime shift would improve her work productivity and enable her to obtain adequate rest and
recovery; that she was taking massive amounts of medication for serious health conditions; and
that the day shift was simply more normal.

0120122238

2
In April 2010, the District Reasonable Accommodation Committee (DRAC) determined that
the modified position on Tour 3 was within Complainant’s medical restrictions and that those
restrictions did not include exclusive assignment to the daytime shift. The DRAC further
determined that there were no vacant funded positions available with the schedule Complainant
sought. Soon thereafter, pursuant to the National Reassessment Process (NRP), Complainant’s
hours were reduced to five per day, but she was compensated for the remaining three from the
Office of Workers’ Compensation Programs (OWCP). In September 2010, OWCP accepted
additional injury-on-duty claims, and Complainant stopped working that same month.

On July 22, 2010, Complainant filed an EEO complaint alleging that the Agency denied her
reasonable accommodation when it did not provide her with a day shift. 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 March
30, 2012.1

In his decision, the AJ acknowledged that Complainant had, throughout the decade, developed
serious medical conditions in addition to the impairment (plantar fasciitis) that gave rise to her
original modified position, but he concluded that while Complainant’s physicians recommended
that she work on a daytime shift, the documentation they submitted could not be interpreted to
require it. He further found it was not until September 2010, that Complainant obtained
medical evidence to support a review of her modified job duties to determine if they were in
line with her restrictions. Consequently, the AJ concluded that the Agency was not liable for
denying reasonable accommodation. 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.

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.

1 Although it is not entirely clear from the record how and when the reduction in hours claim
under the NRP was raised, the AJ determined that it should be subsumed into the McConnell
class action, and the Agency notified Complainant on May 24, 2012, that it had assigned the
claim Agency Case No. 1J-607-0032-12. Although Complainant contends that she was not
subject to the NRP, we find that the AJ’s determination was correct, and the Agency’s
response consistent with his direction.
0120122238

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Upon review of the record, we note that Complainant’s modified position was not a reasonable
accommodation within the meaning of the Rehabilitation Act. Rather, it was provided to
Complainant pursuant to the Agency’s obligations under the Federal Employees Compensation
Act. Arguably, Complainant was seeking a modification to her modified position and that is a
request she should have made through OWCP. However, she also requested a change in the
way she performed her work due to a medical condition and that is a request for reasonable
accommodation within the meaning of the Rehabilitation Act. We conclude that it was
appropriate for the DRAC to review her request for a daytime shift. However, in the Postal
Service, because positions determine shifts, we conclude that what Complainant was in fact
requesting was to be reassigned to another position. She did not identify any vacant funded
positions with daytime shifts for which she was qualified and to which she could have been
reassigned. Thus we conclude that the Agency is not liable for failing to provide reasonable
accommodation, 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
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).
0120122238

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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

June 20, 2013
Date