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

Equal Employment Opportunity Commission

May 29, 2013

0120121013 (E.E.O.C. May. 29, 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. 0120121013

Hearing Nos. 443-2011-00137X and 443-2011-00138X

Agency Nos. 1E-551-0006-11 and 1E-551-0005-11

DECISION

Complainant filed an appeal from the Agency’s November 15, 2011 Final Order concerning
her equal employment opportunity (EEO) complaint alleging employment discrimination. 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 Mail Processing
Clerk at the Agency’s St. Paul Processing and Distribution Center facility in Eagen,
Minnesota. On January 10, 2011, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (Thai) and disability (shoulder, back)
when:1

1. On October 14, 2010, Complainant was informed that based on the National
Reassessment Process (NRP) her work hours were reduced to six hours per day;
and

2. On October 14, 2010, Complainant was denied a Flat Sorter Machine (FSM)
bid because of her permanent restrictions

1 Complainant’s claim (1) based on disability (Agency case number 1E-551-0002-11) was
severed from the remainder of Complainant’s claims and held in abeyance as part of a class
action, McConnell, et al. v. U.S. Postal Service, Agency Case No. 4B-140-0062-06.
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Complainant requested a hearing before an EEOC Administrative Judge (AJ). Over
Complainant's objections, the AJ assigned to the case granted the Agency’s August 31, 2011
Motion for a Decision without a hearing and issued a decision without a hearing on November
2, 2011.

In her Decision, the AJ found that the material facts were not in dispute. Specifically, the AJ
found that Complainant did not establish a prima facie case of discrimination based on race
with respect to claim (1) because she did not identify any similarly situated employees, not in
her racial group, who were treated more favorably. The AJ observed that Complainant’s
position was evaluated under the NRP to determine whether the tasks Complainant performed
were still necessary functions given the Agency’s move toward automated processes and
Complainant’s medical restrictions. Complainant’s restrictions as of the date of the
reassessment in June 2010, included: no lifting more than 20 pounds; sitting, standing, and
performing fine manipulation and simple grasping up to four hours per day; walking and
kneeling up to two hours per day; climbing, bending, stooping, and twisting up to one hour a
day; and no pushing or pulling. The Agency determined that it did not have eight hours of
necessary work available that met Complainant’s restrictions, but offered Complainant a
modified duty position that included four hours of work on the flat sorter machine (FSM). In
October, the AJ found, Complainant’s modified job offer was increased to six hours of work
when the Agency found that Complainant’s updated restrictions included the ability to perform
two hours of preparation work for the FSM.

The AJ found that the employees who Complainant offered as comparators were not similarly
situated because each employee’s medical restrictions were different. The AJ further found
that Complainant did not present any evidence from which an inference could be drawn to
show that Complainant’s race played any role in the Agency’s decision to reduce
Complainant’s hours from eight to six as alleged. The AJ considered the evidence that a team
of Agency officials reviewed Complainant’s work for necessary tasks and Complainant’s
supervisor, S1, notified other employees not in Complainant’s racial group, that the Agency
had no necessary work for them. The AJ found the undisputed evidence did not show that
Complainant’s race motivated the Agency’s decision.

Regarding claim (2), the AJ assumed, without so finding, that Complainant is an individual
with a disability. The AJ further found the undisputed evidence showed that Complainant
could not perform the essential functions of the identified position for which she was the
successful bidder as described in claim (2). The AJ found that Complainant stated she could
perform work on the FSM for four hours a day and could perform other work for the
remaining four hours of an eight hour day. The AJ found that the job description for the
identified position included work on the FSM, plus other tasks for a portion of the work day.
The AJ assumed as true, Complainant’s contention that the clerks assigned to the FSM on
other bids, did not work on the FSM for all eight hours. But the AJ found it was not
reasonable to conclude that the other tasks amounted to half of the work day, or four hours
each day. The AJ found that Complainant did not present medical evidence that showed she
could perform four hours of preparation work in addition to four hours of work on the FSM.
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The AJ found that even if Complainant had presented such evidence, the essential functions of
the identified position were not met by four hours of FSM work out of an eight-hour day and
Complainant presented no evidence that other clerks only worked on the FSM four out of eight
hours in a day. Accordingly, the AJ found that Complainant did not show that she was a
qualified individual with a disability and that the Agency properly denied her bid for the
identified position based on her medical restrictions.

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). 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.

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 or 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tex. 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 Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies
that its decisions were motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental
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Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v.
WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a
prima facie case, complainant must demonstrate that: (1) he is an "individual with a disability";
(2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse
employment action; and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
The burden of production then shifts to the agency to articulate a legitimate, non-
discriminatory reason for the adverse employment action. In order to satisfy his burden of
proof, complainant must then demonstrate by a preponderance of the evidence that the
agency's proffered reason is a pretext for disability discrimination. Id.

In the instant case, we find the AJ properly issued her decision without a hearing. We assume,
without so finding, that Complainant is an individual with a disability. The evidence shows
that many positions were included in the NRP, not just Complainant’s position. The record
shows that other employees were notified that the Agency did not have any necessary work for
them to perform and they were sent home as a result of the NRP. We find no evidence that
demonstrates Complainant’s race played any role in the Agency’s determination of how many
necessary hours of work the Agency had available. We note that the Agency initially tendered
a job offer to Complainant that included additional work as a custodian, which Complainant
did not wish to accept.

We also find, as did the AJ, that the Agency properly denied awarding Complainant the
position identified in claim (2) after she successfully bid for the position because she could not
perform the essential functions of the position with or without an accommodation. We concur
with the AJ that Complainant’s request for an accommodation that would amount to fifty
percent of the primary function of the FSM position is not a reasonable accommodation the
Agency was required to grant. We also find no evidence that would support a finding that the
Agency’s reasons for denying Complainant’s bid were false and that discrimination on the
basis of race was the real reason for the Agency’s decision.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision, finding
no discrimination.

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:

0120121013

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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
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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 29, 2013
Date