EEOC Appeal No. 0120122166
07-30-2015
Complainant v. U.S. Postal Serv.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122166
Agency No. 4G-752-0262-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the February 16, 2012 final Agency decision (FAD) 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's review is de novo. For the following reasons, the Commission AFFIRMS in part and REVERSES in part the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time City Carrier at the Agency's Station A in Dallas, Texas. Complainant suffers from several medical conditions as a result of work-related injuries, including Complex Regional Pain Syndrome (CRPS) of the upper and lower extremities. Complainant explained this is a chronic progressive neurological condition that affects the sympathetic nervous system and causes chronic pain, body aches, stiffness, swelling of feet, and tightness of joints (muscle spasms), with occasional flare-ups. According to Complainant's doctors, Complainant's pain initially began in the lower extremities, but progressed to CRPS of the upper extremities. Complainant had surgery for Tarsal Tunnel Syndrome in 2005 and 2006. Further, Complainant suffers from Plantar fasciitis and Lower Limb Bilateral, and she later developed Carpal Tunnel Syndrome.
Prior to June 2010, the Agency used Complainant as a 204B supervisor; however, the Agency implemented the National Reassessment Process (NRP) and Complainant began working one hour a day as a City Carrier. Complainant underwent hand surgery for Carpal Tunnel Syndrome on August 26, 2010. On August 31, 2010, Complainant's doctor indicated that Complainant had reached maximum medical as to her feet and ankles, and that she would be able to return to work with restrictions after recovering from her hand surgery. On November 30, 2010, Complainant underwent a Functional Capacity Evaluation. The evaluation concluded that Complainant could lift no more than 32 pounds to her waist and 22 pounds shoulder-height and that she could "maintain prolong positions of 30 minutes for sitting, standing, and walking. In a Form CA-17 Duty Status Report dated December 9, 2010, Complainant's doctor indicated that Complainant's restrictions included no lifting more than 32 pounds six to eight hours a day and "30 minutes activity intermittently with breaks."
As a result of Complainant's medical conditions, Agency management offered Complainant limited duty assignments on November 16, 2010 and April 1, 2011. Complainant's duties would include casing an assigned route, pulling down a route and loading it on to vehicle, and delivering mail on an assigned route and other routes. The November 2011 offer indicated that Complainant's physical restrictions were lifting 25 to 30 pounds one to eight hours, one to seven hours of standing/walking to case and deliver mail, and one to two hours of driving Postal vehicles. Complainant refused the first offer on December 1, 2010, reasoning that the offered assignment violated her medical restrictions, including the requirement that she sit, stand, and walk intermittently no more than 30 minutes from the November 30, 2010 Functional Capacity Evaluation.
On April 1, 2011, the Agency offered Complainant a modified job assignment identical to the November 2010 job offer. In an April 19, 2011 letter, a Senior Claims Examiner with the Office of Workers' Compensation Programs (OWCP) informed Complainant that the April 1, 2011 job offer was suitable and in accordance with her medical restrictions, the Functional Capacity Evaluation, and the December 2010 CA-17. On May 31, 2011, Complainant was informed by the Senior Claims Examiner that her claim for wage benefits would be terminated June 5, 2011, based on Complainant's refusal to work.
In an April 27, 2011 CA-17, Complainant's restrictions were listed as no lifting more than 30 pounds, no continuous sitting more than 30 minutes, no more than six hours of walking, and no work outside in below 30 degrees and above 90 degrees. The CA-17 noted that "sitting for prolonged periods of time causes pain - she may sit 30 minutes at a time. No prolonged continuous sitting or walking." Complainant subsequently accepted the April 2011 modified assignment "under protest" on June 4, 2011.
On or around August 30, 2011, Complainant submitted a request for reconsideration to the OWCP. On September 14, 2011, the OWCP vacated the May 31, 2011 decision regarding her wage benefits claim. The OWCP explained that the April 1, 2011 modified assignment offer was not valid because it failed to specifically include Complainant's restriction that she sit 30 minutes intermittently with no prolonged continuous sitting or walking.
On September 14, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and in reprisal for prior protected EEO activity when between June 4, 2011 and July 2, 2011, she was not accommodated.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not respond within the timeframe provided in 29 C.F.R. � 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b).
In the FAD, the Agency initially determined that Complainant was a qualified individual with a disability as she could perform the essential functions of the Letter Carrier position with reasonable accommodation. The Agency found that management had attempted to accommodate Complainant on several occasions in 2010 and 2011. Management had most recently accommodated Complainant by providing her a November 17, 2010 (which was re-offered on April 1, 2011) modified assignment which was determined by OWCP to be within her restrictions. Complainant refused the assignment until June 2011. As a result, the Agency determined that Complainant had not been denied accommodation.
With respect to Complainant's reprisal claim, the Agency determined that, as discussed above, management articulated legitimate, nondiscriminatory reasons for its actions. In particular, the Customer Services Manager (M1) avowed that Complainant's medical documentation indicated that she could deliver mail as a City Letter Carrier, and she later accepted a modified job offer. M1 asserted that Complainant did not request any accommodation beyond the modified job assignment that she accepted, as her lifting restriction did not affect her ability to perform the duties of a City Carrier position. Further, M1 noted that Complainant had medical documentation indicating she could case and carry mail. The Health and Resource Management Specialist (HRMS) confirmed that Complainant was offered a job assignment based on her medical restrictions. HRMS noted that the OWCP ruled that the job offer was a valid offer, and that Complainant should return to work.
The Agency concluded that Complainant failed to show that management's reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to discrimination or reprisal as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency should have provided her a 204B supervisor position and management retaliated against her by not placing her in one. Further, Complainant claims that management attempted to force her to do a job that violated her temperature and break restrictions Complainant further claims that she did not refuse the job offer; rather, she did not understand it because it did not accommodate her restrictions. Complainant notes that the OWCP later found that the job offer was not suitable. Accordingly, Complainant requests that the Commission reverse the FAD.
ANALYSIS AND FINDINGS
Disparate Treatment/Reprisal
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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, the Commission finds that Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. Specifically, the Customer Services Manager (M1) affirmed that Complainant requested and was granted a modified job offer in accordance with her medical documentation. ROI, at 159. M1 noted that Complainant had lifting restrictions not to exceed 32 pounds based on her December 2010 medical documentation. Id. at 158. M1 added that Complainant used sick and annual leave and was a no-call/no-show during the period of time at issue, and that Complainant has not returned to work since July 2011. Id. at 157, 160. The Health and Resource Management Specialist stated that the Senior Claims Examiner at the OWCP ruled that the offered modified job assignment was valid, within Complainant's medical restrictions, and advised Complainant to return to work. Id. at 163.
The Commission finds no evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged.
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. Part 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2 (o) and (p). The Agency does not dispute that Complainant is a qualified individual with a disability under the Rehabilitation Act.
The record reveals that in November and December 2010, Complainant's restrictions included no lifting more than 32 pounds six to eight hours a day and "30 minutes of activity intermittently with breaks." ROI, Post-Investigation Documents; ROI, Ex. 5. In November 2010, the Agency offered Complainant a limited duty modified job assignment in accordance with her lifting restrictions; however, the offer failed to address Complainant's need for breaks in activity. ROI, Ex. 6. Complainant refused the offer because it would violate her need to take breaks. There is no evidence that the Agency offered Complainant a new modified assignment in accordance with her medical documentation or revised the offered assignment. The Agency offered Complainant the same modified job assignment in April 2011, without any modifications to accommodate Complainant's need to take breaks. ROI, Ex. 5. Complainant signed and accepted the job offer under protest as it still failed to fully address her medical restrictions. Complainant submitted an updated CA-17 dated April 27, 2011, outlining further restrictions including weather restrictions and noting again that "sitting prolonged periods of time causes pain - she may sit 30 minutes at time...[n]o prolonged continuous sitting or walking." The Agency did not offer Complainant a new assignment in accordance with those restrictions.
The Agency apparently relied upon the OWCP's determination that the November 2010 and April 2011 job offers were suitable. The Commission reminds the Agency that its duty to provide reasonable accommodation is ongoing, and the Agency cannot use an OWCP decision as reason for not providing reasonable accommodation. Germain v. U.S. Postal Serv., EEOC Appeal No. 0120088777 (Dec. 3, 2008). An OWCP decision indicating that a position may be suitable for an employee does not relieve the Agency of its duty to provide reasonable accommodation. In the instant case, the OWCP ultimately found that the modified assignments offered were not suitable as they failed to address several of Complainant's documented medical restrictions. The Agency has proffered no evidence that accommodating Complainant's restrictions (i.e., intermittent breaks between activities and weather restrictions) would pose an undue hardship. Accordingly, the Commission finds that the Agency violated the Rehabilitation Act when it failed to offer Complainant reasonable accommodation in accordance with her medical restrictions.2
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, the Commission finds that Complainant has not established that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination or reprisal, but that she has established that she was denied reasonable accommodation for her disability. Accordingly, the Commission AFFIRMS the FAD with respect to disparate treatment, REVERSES the FAD with regard to reasonable accommodation, and REMANDS the matter for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following remedial action within 120 calendar days, unless otherwise stated:
1. The Agency shall conduct a supplemental investigation to determine whether, and what, reasonable accommodation Complainant currently requires. The Agency shall solicit updated medical information from Complainant as may be needed for an informed determination. Complainant shall cooperate in this matter.
2. The Agency shall restore any leave used by Complainant due to the Agency's failure to provide her with a reasonable accommodation as of June 4, 2011.
3. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R � 1614.110.
4. The Agency shall provide training to the responsible management officials identified regarding their responsibilities with respect to eliminating discrimination in the federal workplace. The training must emphasize the Agency's obligations under Section 501 of the Rehabilitation Act and in particular, its duties regarding reasonable accommodation.
5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary' action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
POSTING ORDER (G0914)
The Agency is ordered to post at its Stockton, Georgia facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
July 30, 2015
Date
1 On October 6, 2011, the Agency dismissed an additional claim pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Complainant failed to raise any challenges to the dismissal on appeal; therefore, the Commission will not address it herein. Additionally, on November 25, 2011, the Agency dismissed the complaint for failure to cooperate reasoning that Complainant failed to submit an affidavit in support of her complaint. On December 5, 2011, the Agency received Complainant's affidavit and rescinded the dismissal.
2 To the extent that Complainant believes the Agency management should have used her as a 204B supervisor as it had in the past, the Commission notes that Complainant is not entitled to the accommodation of her choice, and an employer may choose among reasonable accommodations as long as the chosen accommodation is effective. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Guidance), No. 915.002, Question 9 (rev. October 17, 2002).
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0120122166
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013