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

Equal Employment Opportunity Commission

Mar 26, 2013

0120121732 (E.E.O.C. Mar. 26, 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
(Pacific Area),
Agency.

Appeal No. 0120121732

Hearing No. 480-2011-00666X

Agency No. 4F-900-0121-10

DECISION

On February 25, 2012, Complainant filed an appeal from the Agency’s January 26, 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. 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 at the Agency’s
Beverly Hills Post Office in California. She was a member of the carrier craft but due to
severe medical restrictions, worked as the Lobby Director, greeting and assisting waiting
customers and keeping the lines moving. She did this job from August 30, 2004 – January 13,
2009, when she was given a new limited duty assignment. From January 13, 2009 until June
8, 2009, Complainant did some lobby directing work, assisted in completing EUARS logs and
priority mis-sent logs, and did other work that was available within her medical restrictions.
On June 8, 2009, the offer of this limited duty position was withdrawn, and Complainant was
sent home pursuant to a National Reassessment Process (NRP) determination that there was no
operationally necessary work available within her restrictions. June 8, 2009 was the last date
Complainant performed work at a postal facility. Complainant was one of 26 limited duty
employees at Beverly Hills, of all ages and races, whose hours had been reduced or eliminated
because of the NRP.
0120121732

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On February 13, 2010, due to downsizing, Complainant and 49 other carriers were
involuntarily excessed pursuant to seniority. Complainant was reassigned to the mail handler
craft and transferred to the Los Angeles Processing & Distribution Center (P&DC). When she
reported to the P&DC, she was told there was no work within her restrictions and again sent
home.1

On May 25, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), age (50), and in reprisal for
prior protected EEO activity when her limited duty job offer was withdrawn; she was
transferred to the mail handler craft; and sent home because no work was available.2

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 January 17, 2012.
The AJ concluded that Complainant failed to establish a prima facie case of discrimination on
any of the alleged bases because the NRP and the involuntary excessing applied to male and
female employees, of all represented races and of all ages, and regardless of whether they had
or did not have prior protected activity. Even assuming that there was evidence to support an
inference of discrimination, the AJ found the Agency articulated legitimate and non-
discriminatory reasons for its actions, namely there was no operationally necessary work
within Complainant’s restrictions at the Beverly Hills Post Office and due to downsizing, she
was excessed and transferred into the mail handler craft where again, no operationally
necessary work could be found at the P&DC within her restrictions. The AJ concluded that
Complainant came forth with no evidence that these reasons were false, unworthy of credence,
or a pretext for discrimination. 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 grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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

1 Complainant was initially charged with being “Absent Without Leave (AWOL),” but this
classification was in error and subsequently corrected to reflect that she was entitled to
workers’ compensation related leave.
2 Complainant also raised a claim of disability discrimination. This claim was subsumed into
the McConnell class action. We note that Complainant’s only arguments on appeal pertain to
her disability claim and are not relevant to the claims set forth herein.
0120121732

3
of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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 find that summary judgment was appropriate because there are
no material facts in dispute, and there is no evidence from which a reasonable fact finder could
conclude that Complainant’s race, sex, age or prior protected activity were factors in any of
the Agency’s actions. It is undisputed that Complainant’s severe medical restrictions prevented
her from working as a Letter Carrier, Mail Handler, or Clerk, and that her former position as
a full time Lobby Director was eliminated because it was deemed not to be a useful position.
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
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).
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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

March 26, 2013
Date