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

Equal Employment Opportunity Commission

Mar 6, 2014

0120123374 (E.E.O.C. Mar. 6, 2014)

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
(Headquarters),
Agency.

Appeal No. 0120123374

Hearing No. 570-2012-00041X

Agency No. 6X000002411

DECISION
On August 31, 2012, Complainant filed an appeal from the Agency’s July 26, 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
In July 2010, Complainant was promoted to an EAS-19 Equal Employment Opportunity
Specialist position and was assigned to an Agency facility in Ft. Worth, Texas. Prior to
assuming that position, Complainant had been working in Oklahoma. Complainant has high
blood pressure. According to Complainant, the workload in Ft. Worth was extremely heavy,
and she was under tremendous stress. By December 2010, her blood pressure could not be
controlled, and she requested reasonable accommodation. Specifically she asked to be allowed
to return to Oklahoma and work there for three months while she sought medical attention to
bring her blood pressure down. Complainant stopped working while she waited for the
Agency to make a decision on her request for reasonable accommodation. Her blood pressure
continued to rise, so much so that her physician in Oklahoma determined that she could not
work at all until she could get it under control. As a result, the Agency denied the requested
accommodation because Complainant could no longer work.

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Complainant was cleared to return to work in early May 2011. Her physician restricted her to
working no more than eight hours per day and not lifting anything above 25 pounds. He
recommended that she be allowed to work in Oklahoma for four weeks so that he could
continue to monitor her progress on a weekly or bi-weekly basis. Complainant again requested
the reasonable accommodation of temporarily working in Oklahoma. This time the Agency
denied the request, characterizing it as “not reasonable.” Although the record is silent as to
why, Complainant was reassigned to the Oklahoma District, effective July 16, 2011.

On July 1, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of disability when her first request for reasonable accommodation was
delayed and denied and on the basis of disability and in reprisal for prior protected EEO
activity when her second request was denied. 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 July 11, 2012. The AJ
concluded as follows:

Assuming arguendo that Complainant is a "qualified individual with a disability"
within the meaning of the Rehabilitation Act and its implementing regulations, I
find that the Agency provided Complainant a reasonable accommodation for her
medical condition. It is undisputed that on or about December 27, 2010,
Complainant requested to be allowed to work in the Oklahoma District Office as
an accommodation so that she could receive medical treatment from her doctor
in Tulsa, Oklahoma. Her doctor informed the Agency that she would need to
treat Complainant once or twice weekly to get her blood pressure under control.
It is also undisputed that between December 27, 2010, and May 9, 2011,
Complainant was allowed to take a combination of annual, sick and leave
without pay as needed to address her medical condition. I find that the Agency
granted Complainant a reasonable accommodation for her medical condition by
allowing her to take any leave, including unpaid leave, as needed to address her
medical situation. This accommodation was sufficient to allow Complainant to
receive the required medical treatment/attention she needed to address her
medical condition (high blood pressure) in the Fort Worth, Texas, area where
she was assigned to work. I find that Complainant has proffered no evidence
which creates a triable issue whether it was "medically necessary" for her to
receive medical treatment/attention in Tulsa, Oklahoma. Accordingly,
Complainant's disability discrimination/failure to accommodate claim cannot
survive summary judgment.

AJ Decision at p. 8. 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.

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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.
The Commission’s regulations recognize not only those reasonable accommodations that enable
an individual with a disability, who is qualified, to perform the essential functions of her
position, but also those that make it possible for an individual with a disability to recover from
or receive treatment for her disability. As examples, leave and transfers are forms of
reasonable accommodation that enable individuals to seek medical treatment so that they can
return to or remain working.

It is undisputed that Complainant required medical care to treat her blood pressure.
Complainant requested to be temporarily assigned to Oklahoma so that she could remain
working while she sought medical attention there. The AJ found that Complainant failed to
proffer evidence that it was medically necessary for her to seek medical attention in Oklahoma,
in a city 4 ½ hours from Ft. Worth. There is no evidence in the record that Complainant’s
high blood pressure required unique care that could be only be provided by this Oklahoma
physician with whom she had no pre-existing relationship prior to January 2011. We agree
that Complainant failed to proffer evidence from which a reasonable fact finder could conclude
that she could only obtain appropriate medical care in Oklahoma. We thus conclude that there
are no genuine issues of material fact in dispute.

Assuming Complainant was a qualified individual with a disability within the meaning of the
Rehabilitation Act, we find that although Complainant needed medical treatment, she did not
need medical treatment in Oklahoma, thus undermining the nexus between the temporary
transfer and her impairment. Consequently, we decline to find the Agency liable for denying
her requested accommodation.

Finally, with regard to Complainant’s claim of retaliation, she engaged in protected activity
when she first requested reasonable accommodation. However, there is no evidence from
which a reasonable fact finder could conclude that any of the involved agency employees acted
with retaliatory animus when they denied her second request.

For the reasons set forth above, the Agency’s final order is AFFIRMED.

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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.

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
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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

Date
March 6, 2014