Majorie J.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Sep 6, 2019

2019001142 (E.E.O.C. Sep. 6, 2019)

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

Majorie J.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 2019001142

Agency No. 4J-604-0086-16

DECISION

On October 13, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s September 11, 2018 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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 Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a City Carrier at the Agency’s Oak Brook,
Illinois Post Office.

On June 21, 2016, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her because of her disability and in reprisal for prior EEO activity
when, on March 3, 2016 and continuing, she was not accommodated per her medical restrictions
when she was ordered off the clock and not permitted to return to work.

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant initially requested a hearing. Complainant, however, subsequently

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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withdrew the hearing request. The Agency issued the instant final decision on September 11,
2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment Claim – Retaliation

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).

Here, the record shows that responsible management officials articulated legitimate, non-
discriminatory reasons for its actions, as more fully discussed below.

On February 21, 2004, Complainant was hired as a City Carrier. On January 26, 2007,
Complainant fell down the stairs while delivering mail. At that time, Complainant’s duties
included sorting mail into cases or shelves while standing or sitting, handling sacks of mail
weighing up to 70 pounds, carrying mail in shoulder satchels weighing up to 35 pounds, picking
up and delivering mail in motor vehicle and/or on foot. Following her injury, Complainant filed a
claim for workers’ compensation, which was accepted by the Department of Labor’s Office of
Workers’ Compensation Programs (OWCP). OWCP accepted Complainant’s injury as a work-
related aggravation of pre-existing cervical strain, left thigh contusion, right shoulder sprain, and
lumbar strain.
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From January 26, 2007 through April 19, 2007, Complainant did not work and was totally disabled.
Complainant returned to work on limited duty from April 20, 2007 through March 3, 2008.
However, as of March 3, 2008, Complainant was again totally disabled and never returned to work.

On November 1, 2012, the then-Postmaster of Oak Brook Post Office informed Complainant by
letter that she would be separated from Agency employment effective December 5, 2012, due to
her inability to perform the essential functions of her position for over one year. On December 5,
2012, Complainant was administratively separated from Agency employment for being on OWCP
rolls for more than one year. However, she continued to receive OWCP payments during the
relevant period at the rate of 75% of her wages with no taxes withheld.

On January 21, 2014, Complainant sent a letter to the then-Central Illinois District Manager
requesting reinstatement to the Oak Brook Post Office. She submitted her current OWCP Duty
Status Report (“CA-17”), dated January 16, 2014, with her request for reinstatement. The CA-17
listed Complainant’s restrictions as follows “Okay 2 hr. continuous driving. Okay 2 hr.
intermittent route driving, Okay to case mail. No overheard work on Rt shoulder. Needs to change
position from sitting to standing per [lower back pain]. Permanent restriction.” In addition, the
CA-17 noted restrictions of 25 pounds continuous and intermittent lifting/carrying at a maximum
of 8 hours per day, 8 hours intermittent sitting, 6 hours intermittent standing, 6 hours intermittent
walking, 8 hours intermittent pulling/pushing, and 4 hours intermittent reaching over shoulder on
her left side only.” The record reflects that there was nothing in the January 16, 2014 CA-17 or
her January 21, 2014 reinstatement request that stated Complainant was unable to carry a mailbag.

On October 2, 2015, an assigned doctor (“Doctor 1”) examined Complainant for an OWCP-
directed Second Opinion Orthopedic Surgery Examination and Evaluation. Doctor 1 diagnosed
Complainant with capsulitis of the right shoulder and found the condition was permanent. Doctor
1 also found that Complainant was not totally disabled and that she could “work with no over
shoulder height work with the right arm, and no lifting, pushing or pulling more than 25 pounds.
Otherwise, no restrictions are supported…” Furthermore, Doctor 1 completed the OWCP form
5C “Work Capacity Evaluation for Musculoskeletal Conditions.” Therein, Doctor 1 marked
Complainant’s limitations as follows: reaching above shoulder on the right, pushing with a
maximum of 8 hours and 25 pounds, pulling a maximum of 8 hours and 25 pounds, and lifting
with a maximum of 8 hours and 25 pounds.

In December 2015, Complainant received a letter from the Agency instructing her to appear in
January 2016 for an interview and meeting to discuss possible reemployment. On January 19,
2016, Complainant participated in a return-to-work reemployment interview to discuss the
proposed job offer, a Restoration Rehabilitation Assignment created solely for her. At that time
the District was able to create an assignment that Complainant could perform within her
restrictions. During the interview, the job offer and medical documentation upon which it was
based were reviewed and discussed with Complainant. She made no concerns regarding the duties
of the position or the physical requirements needed to perform them.

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On January 19, 2016, the Manager, Labor Relations, for the Great Lakes Area provided
Complainant with a Restoration Rehabilitation Assignment which she accepted. The restrictions
in Doctor 1’s October 2, 2015 report were the restrictions on which Complainant was reinstated to
the Agency. In the assignment letter, the Manager, Labor Relations, noted that the Agency
received medical documentation from DOL Second Opinion Doctor 1 dated October 2, 2015
indicating that Complainant was capable of performing limited duty work.

Based on Doctor 1’s examination, OWCP requested that the Agency provide a return-to-work job
offer to Complainant within the doctor’s recommended restrictions. The Agency’s subsequent
assignment letter gave a description of the duties to be performed:

Perform a variety of deliveries including apartments not requiring over shoulder
lifting and collection of mail weighing up to 25 pounds on foot or by vehicle under
varying road and weather conditions in a prescribed area. Deliver mail along
prescribed route weighing up to 25 pounds, on foot or by vehicle. Perform
collection mail duties picking up mail weighing up to 25 hours from street letter
boxes and accept letters from mailing customers, on certain routes. Deliver express,
priority and parcel mail weighing up to 25 pounds.

The assignment letter also gave the specific physical requirements of the position:
“Lifting/carrying 25 lbs, sitting, walking, standing, reaching below shoulders with right arm,
reaching above shoulders with left arm, simple grasping, fine manipulating, climbing, kneeling,
bending/stooping, twisting, pushing/pulling 25 lbs, driving, work in extreme temperatures.” The
assignment letter also listed Complainant’s permanent restrictions as lifting and carrying at a
maximum of 25 pounds for no more than 8 hours, pushing and pulling at a maximum of 25 pounds
for no more than 8 hours, and no over the shoulder height work with her right arm.

In addition, the assignment letter stated “there are no other medical facts, restrictions, situational
factors, equipment or devices that need to be considered in the identification of a position.” The
assignment letter also noted “this position has been created exclusively for you. Once you
vacate this position for any reason, it will be abolished [emphasis in its original].” Complainant
read the letter during the meeting and signed it, accepting the offer on January 19, 2016.

On February 20, 2016, Complainant reported to the Oak Brook Post Office for training. Three
days later, on February 23, 2016, Complainant assisted the carrier training her with carrying the
mail and noticed an aggravation in her neck, shoulder, and back. On March 1, 2016, Complainant
visited her treating doctor after coming to the conclusion that she could not carry a mailbag on her
body and obtained an updated CA-17.

The record reflects that March 3, 2016, was to be the first day Complainant was going to actually
perform her rehabilitation assignment. The Acting Rehabilitation Program Committee-Delivery
and Operations Lead was scheduled to perform an onsite job analysis for Complainant that day
along with the vocational counselor assigned to Complainant’s OWCP claim. When Complainant
reported to work on March 3, 2016, she informed the Acting Rehabilitation Program Committee-
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Deliver and Operations Lead, vocational counselor and Postmaster that she “had an
aggravation/increased pain” and presented an updated CA-17 dated March 1, 2016, containing
new restrictions.

The record reflects that the new restrictions stated that Complainant could not carry a mailbag on
her body and noted these were permanent restrictions. This restriction altered Complainant’s
ability to perform the duties in the offered rehabilitation assignment and carrying a mailbag would
have enabled her to perform the duties in the rehabilitation assignment accepted by her. As a
result, Agency management had to delay their assessment due to the new medical restrictions. The
Postmaster informed Complainant that carriers were required to carry mailbags and that he did not
have office work for her to do at that time. The Acting Rehabilitation Program Committee-
Delivery and Operations Lead advised Complainant to complete a CA-2a since the mailbag
restriction was not mentioned in the medical report by the doctor in his October 2, 2015
recommendation.

Complainant was informed that she would be off duty until Agency management could offer her
other light duty or until OWCP made a determination to accept a medical condition change.
Subsequently, all of Complainant’s CA-17s have given the restriction that she is unable to use a
mailbag. On March 22, 2016, Complainant’s treating doctor wrote that Complainant “noticed
increase[d] pain in her shoulder and neck after placing the mail bag over her shoulder area. We
added no mail bag to her other restrictions so that this would not cause a flare up or reoccurrence
of her symptoms…she is unable to carry a mail bag, due to the weight being placed on her shoulder
and neck area…”

On March 23, 2016, OWCP sent a letter to Complainant placing her on notice that due to a conflict
in the medical evidence, she would be sent to a Referee Examination on April 26, 2016 with a
named assigned doctor (“Doctor 2”). On March 25, 2016, the Postmaster informed Complainant
in a letter that she was considered in a light duty status until OWCP notified her that her claim had
been approved. The Postmaster enclosed a light duty form for Complainant to request light duty.

On May 20, 2016, Doctor 2 completed his Referee Examination Report for OWCP though it was
not received by Central Illinois District Health and Resource Management until approximately 9
months later on February 13, 2017. The report found that treatment for Complainant’s work-
related injuries should have been completed at the latest in March 2007 and that Complainant’s
“strains/contusions were directly related to the claimed work incident. These injuries were
temporary conditions and have long since resolved. The degenerative conditions are unrelated to
the claimed work incident.”

On April 7, 2016, Complainant’s treating doctor submitted a Light Duty Request for Complainant.
Therein, the treating doctor gave her permanent restrictions as “Change position from sitting to
standing [,] unable to use a mailbag, 0 pounds continuous lifting/carrying 25 pounds intermittent
lifting/carrying 8 hours per day, and left arm only reaching above shoulder 4 hours per day.”

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On June 8, 2016, the Chairperson of the Disability Reasonable Accommodation Committee
(DRAC) for the Central Illinois District sent a letter to Complainant informing her that her case
had been referred to the Central Illinois DRAC and requested a comprehensive medical report
from her treating doctor. On July 15, 2016, the Chairperson informed Complainant that though
she had replied 10 days previously, she had not provided the comprehensive medical report from
her treating doctor as requested.

On August 1, 2016, the Chairperson received medical documentation from Complainant’s treating
doctor. She also received additional clarifying progress notes from the treating doctor stating that
Complainant could not use a mailbag. On September 27, 2016, an interactive meeting was
conducted with Complainant, her union representative, Officer-in-Charge, the Postmaster, Acting
Rehabilitation Program Committee-Delivery and Operations Lead, and the Occupational Health
Nurse Administrator to determine what work Complainant could do within her restrictions. During
the meeting, the weight of the mail cart was discussed since it weighed more than Complainant’s
25-pound restriction. The DRAC provided Complainant with an assignment that did not violate
her restrictions.

On September 29, 2016, the Officer-in-Charge sent Complainant a letter summarizing the type of
work she would be doing and her agreed-upon accommodations which went into effect October 6,
2016. The letter noted that Complainant would “not be required to lift anything in excess of 25
pounds,” would “not be required to carry a satchel on [her] body,” among other restrictions, and
that [d]epending on daily workload available within [her] restrictions, [she] may work more or less
than 8 hours per day.”

On October 6, 2016, Complainant returned to work. During the relevant period, the OWCP issued
Complainant a Notice of Decision informing her that her claim for recurrence was denied “because
the evidence is not sufficient to established that you are disabled/further disabled due to a material
change/worsening of your accepted work related conditions. The Notice further stated “the
evidence of record does not establish the basis for your recurrence because there is no report from
[Complainant’s treating doctor] with objective medical findings upon exam to support that your
condition worsened to the point that your restrictions have changed.”

The Postmaster explained that when Complainant reported to work, the Acting Rehabilitation
Program Committee-Delivery and Operations Lead and a representative from the OWCP were
going “to take measurements and weight. [Complainant] brought an updated CA-17 stating she
would not do any park and loop as her restrictions [stated] No carrying mail bag on body.”

The Postmaster explained that Complainant “was not ordered [off] the clock; she was notified by
me that I could not work her until she got clarification. The Dept of Labor rep stated he was going
to be getting with his dept and follow up with [Acting Rehabilitation Program Committee-Delivery
and Operations Lead].”

The Acting Rehabilitation Program Committee-Delivery and Operations Lead explained that
Complainant was not ordered off the clock, “however she was informed that the office couldn’t
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accommodate her new restrictions and that she would need to go home and use her own leave until
DOL [OWCP] made a decision. Again, once an employee has changed their accepted work-related
restrictions and their office can no longer accommodate. The employee is advised to file a Ca-2a
due to a change in condition and the agencies inability to accommodate.”

Agency management determined that with her restrictions, Complainant cannot deliver mail with
a cart because the cart alone without satchels or mail weighs 30 pounds, more than her 25-pound
restriction. If a mail cart were used on the route while delivering mail, Complainant would have
to lift the mail cart up and down stairs, curbs, and in and out of her vehicle. Complainant
acknowledged that the weight of the mail cart exceeds her restrictions.

After careful review of the evidence, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that management’s articulated reasons for its disputed actions were
pretext designed to mask discrimination. There is simply no other evidence of record that
Complainant’s prior protected activity played any role in Agency management’s attempts to
accommodate her.

Disability Claim

Under the Commission’s regulations, the Agency is required to made reasonable accommodation
to the known physical and mental limitations of an otherwise qualified individual with a disability
unless the Agency can show that accommodation would cause undue hardship. 29 C.F.R. §
1630.9.

In this case, the Agency argues that Complainant is not qualified for her position because she
cannot perform the essential functions of her position. According to the Postmaster, Complainant
could not perform her City Carrier position within her medical restrictions. Specifically, the
Postmaster stated that Complainant “still has the same restrictions of no [mail] bag on her body.”
We note that the Agency made efforts to retain Complainant in some working capacity with the
Agency. Complainant had an approximately eight-year hiatus from actually working in an Agency
position. In 2016, however, the Agency placed Complainant in a “specially-created modified city
carrier position” but this attempt proved unsuccessful. The Agency properly determined that
Complainant not only lacked the ability to perform the essential functions of her regular city carrier
positions, but that she could not perform the essential functions of the modified city carrier position
“made up of hobbled-together job duties for Complainant in 2016 for the sole purpose of restoring
her to work after a compensable injury.”

In sum, we find that the evidence of record supports the Agency’s conclusion that there was no
violation of the Rehabilitation Act when removing Complainant from her modified position
because she could not perform the essential functions of a City Carrier within her restrictions.

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CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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).

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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 (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 6, 2019
Date