Joanna D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

0120180360 (E.E.O.C. Sep. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Joanna D.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120180360

Hearing No. 430-2015-00392

Agency No. 4K-230-0070-15

DECISION

On October 30, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 25, 2017 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at
the Agency’s Lynnhaven Station in Virginia Beach, Virginia. She had been employed by the
Agency for approximately 14 years.

Complainant had a walking route that required her to stand and sort mail for approximately two
hours and then spend more than six hours walking to deliver mail on her route. Since 2005,
Complainant experienced medical issues with both of her feet and ankles, including plantar
fasciitis, hallux valgus, and degenerative joint disease.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On November 24, 2014, Complainant provided management with a note from her podiatrist
requesting reasonable accommodation for her medical problems in the form of a light work load
and a limitation on her ability to walk for no more than four hours per day. Complainant provided
the note to her supervisor (Supervisor). The Supervisor denied seeing the note but admitted that
Complainant had told her that her doctor had limited her hours. It appears that at some point the
Supervisor gave Complainant a CA-2 form to complete. The form is a request for workers’
compensation and not a reasonable accommodation request form.

Complainant began submitting requests for “auxiliary assistance” by PS Form 3996. Complainant
asserted that she sought “auxiliary assistance” because she needed help finishing her route due to
her walking restriction. On at least some of the forms, Complainant indicated she was requesting
the assistance because of her medical condition.

The record shows that on at least November 28 and 29, 2014, December 2, 6,8, 9 and 16, 2014,
and January 16, 2015, Complainant submitted PS Form 3996s on which she wrote she was
“working with work-related injuries” and was “under doctor care” and need auxiliary assistance.
On the November 29 form, she added that she was limited to “4 hrs in the street per doctor.” The
Supervisor stated that she received these forms from Complainant and initialed them but did not
read them and was unaware that Complainant was requesting the auxiliary assistance as an
accommodation for a limitation in her walking.

In January 2015, Complainant informed the Supervisor that she needed ankle replacement surgery.
The record shows that following her surgery, she submitted her application for workers’
compensation.

The Manager of Operations (Manager) stated that she reviewed PS Form 3996s as part of her
duties to determine if too much overtime was being granted. She said received and reviewed
Complainant’s submissions of the PS Form 3996. The Manager advised Complainant that she was
not completing the form properly. The Manager testified in her deposition that she asked
Complainant about her medical restrictions, but Complainant responded that she had already
provided medical documentation to the Supervisor. Manager said she did not follow-up with the
Supervisor or any other official concerning the matter. Neither the Supervisor nor the Manager
offered Complainant any accommodation or referred her to the Agency’s reasonable
accommodation process.

Complainant said she believed that when she submitted the PS Form 3996, she was requesting a
reasonable accommodation which the Supervisor and the Manager denied. As a result, on January
30, 2015, Complainant contacted an EEO Counselor. Complainant subsequently filed a formal
EEO complaint on March 2, 2015, alleging that the Agency discriminated against her on the basis
of disability (knee/ankle) when, since November 2014, she has not been accommodated with
auxiliary assistance on her walking route.

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At the conclusion of the investigation, Complainant was provided a copy of the investigative file
and requested a hearing before an EEOC Administrative Judge (AJ). The parties engaged in a
discovery period during which the Manager, Supervisor, and another management official were
deposed. Complainant filed a motion for summary judgment in her favor on May 6, 2016. The
Agency filed its opposition to Complainant’s motion and its own cross-motion for summary
judgment in its favor on May 16, 2016. Complainant replied to the Agency’s motion on May 25,
2016.

On September 27, 2016, the AJ issued a decision by summary judgment in favor of the Agency,
granting the Agency’s motion and denying Complainant’s motion.

The AJ concluded that there were no material facts in dispute and that Complainant was an
individual with a disability. However, the AJ determined that Complainant failed to show that she
was a “qualified” individual with a disability. The AJ held that Complainant was unable to perform
the essential functions of her City Letter Carrier position, as she could not maintain the prolonged
periods of standing or walking required to perform her job.

In addition, the AJ noted that the Agency cannot be held liable solely for failure to engage in the
interactive process alone and liability is determined only if the failure to engage in the interactive
process resulted in the Agency’s failure to provide a reasonable accommodation. The AJ found
that the Supervisor provided Complainant with a medical form (CA-2 form) to complete, but she
never returned the form as requested. As such, the AJ concluded that the Agency could not be
held liable due to Complainant’s failure to satisfy her obligation to do her part of the interactive
process. As such, the AJ concluded that the Agency’s motion for summary judgment should be
granted as Complainant failed to establish that the Agency’s actions constituted a violation of the
Rehabilitation Act.

The Agency’s final action implemented the AJ’s decision.

Complainant appealed asserting that the AJ erred in issuing a decision without a hearing.
Complainant argued that there are genuine issue of material facts and credibility determinations
which can only be addressed through a hearing.

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.
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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.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. The courts have been clear that summary judgment is not to be used
as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The
Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a
need for strident cross-examination and summary judgment on such evidence is improper."
Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (February 24, 1995).

The Agency is required to make reasonable accommodation for the known physical or mental
limitations of an otherwise-qualified individual with a disability, unless it can prove such an
accommodation would cause an undue hardship. 29 C.F.R. § 1630.9.

As an initial matter, we conclude, despite the Agency’s argument to the contrary, that Complainant
has established that she is an individual with a disability within the meaning of the Rehabilitation
Act. The record contains evidence that Complainant has been experiencing problems with her
ankles/feet since at least 2007, required ankle surgery during the period in question, and had
medical limitations on her ability to stand and walk. The record also indicates that, at times,
Complainant has worn a brace. One management witness further stated that Complainant walked
with a limp.

The AJ went on to determine that Complainant was not “qualified” for her position because she
could not deliver mail for more than four hours per day. This conclusion is misplaced as there is
no evidence that full-time work is an “essential function” of the letter carrier position in question.
It is undisputed that Complainant was fully able to perform the essential functions of her position
within the first four hours of her medical restriction. In essence, she was requesting part-time work
as an accommodation for her disability if no other non-standing/non-walking work could have
been found for her to do for the remaining four hours of her shift. The Agency provided no
evidence whatsoever that to grant her a part-time schedule would cause an undue burden on its
operations. Complainant argues, without response from the Agency, that management could
simply have used someone from its temporary or part-time workforce to complete the remainder
of Complainant’s walking route, which would not have incurred overtime expenses or burdened
other full-time employees. We note that the Supervisor stated in her deposition that the Agency
could have provided someone to help Complainant finish her route. Specifically, the Supervisor
was asked, “it would not have caused you a hardship to have provided her assistance because of
her medical problem?” She responded, “Absolutely not.”

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At this point, we conclude that Complainant has established a prima facie case of denial of
reasonable accommodation as she has shown she was an otherwise qualified individual with a
disability who was requesting an accommodation which was not provided by the Agency.

After a careful review of the record, we find that the AJ erred when she concluded that there were
no genuine issues of material fact in this case. Most critically, the Agency asserted, and the AJ
found, that Complainant failed to provide the Agency with requested medical documentation in
support of her accommodation request. Complainant asserts she provided the Supervisor with a
note from her doctor in November 2014 that limited her to walking a maximum of four hours per
day. The Supervisor denies receiving the note, but concedes they had some discussion about the
restriction. The record also shows that Complainant continued to document her request to not
exceed her four-hour limitation on her walking route by submitting forms requesting auxiliary
assistance. It is undisputed that the Supervisor received these forms and initialed them, but she
denies reading them. The Manager states she reviewed these forms and had a discussion with
Complainant about them, but during her deposition stated she never discussed the matter with the
Supervisor or referred Complainant to the reasonable accommodation process.

The AJ determined that even if the Agency managers failed to properly engage in the interactive
process with Complainant, the Agency cannot be held liable because there was no showing that
the lack of engagement resulted in the failure to accommodate. The AJ bases this conclusion on
her finding that “there is no indication that Complainant provided the information requested by the
Agency to begin the interactive process [emphasis in the original].” Complainant, however, denies
she was ever asked by management to provide more information. The record shows that the
Supervisor provided Complainant with a CA-2 form to complete, which is the first step in applying
for workers’ compensation. However, there is no evidence in the record, including in the
depositions of the responsible management officials, to indicate that Agency management asked
her for more information to support consideration of a reasonable accommodation request or
referred her to the District Reasonable Accommodation Committee (DRAC) to consider any
accommodation request.2 The AJ held that it was Complainant’s failure to provide medical
documentation which caused the breakdown of the interactive process. We find that there are two
versions of events concerning this critical issue provided in the record, that raised by Complainant
and another raised by management, creating a genuine issue of material fact to be resolved through
a hearing.

The hearing process is intended to be an extension of the investigative process, designed to ensure
that the parties have "a fair and reasonable opportunity to explain and supplement the record and,
in appropriate instances, to examine and cross-examine witnesses."

2 The AJ’s decision cited a document in the report of investigation (“ROI 92”) indicating that the
Agency asked for medical documentation. However, looking closely at the document cited as
evidence that the Agency requested a specific form or medical information, we find that the
document is related to an event from 2008, not Complainant’s reasonable accommodation request
from 2014.
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See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), 7-1 (Aug. 5, 2015); see also 29 C.F.R. § 1614.109(e). “Truncation of this process, while
material facts are still in dispute and the credibility of witnesses is still ripe for challenge,
improperly deprives Complainant of a full and fair investigation of her claims.” Bang v. U.S.
Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal
Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC
Request No. 05940578 (April 25, 1995). In summary, there are simply too many unresolved issues
which require resolution through a hearing, including an assessment as to the credibility of the
various witnesses. Therefore, judgment as a matter of law for the Agency should not have been
granted.

CONCLUSION

After a careful review of the record, including the parties’ arguments on appeal, the Agency's final
action adopting the AJ’s decision by summary judgment is REVERSED and the matter is
REMANDED to the Agency in accordance with this decision and the Order below.

ORDER

The Agency is directed to submit a renewed request for a hearing, a copy of this appellate decision,
and copy of the complete complaint file to the EEOC’s Charlotte District Office, Hearings Unit
within thirty (30) calendar days of the date this decision is issued. The Agency shall provide written
notification to the Compliance Officer as set forth below that the complaint file has been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and
issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109, and the Agency shall
issue a final action in accordance with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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).
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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 (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision.
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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 filed your appeal with the Commission.
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. Filing a civil action will terminate the administrative processing of your
complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 26, 2019
Date