[Redacted], Arturo A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022001388 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arturo A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001388 Hearing No. 430-2021-00335X Agency No. 4K-270-0018-21 DECISION On January 15, 2022, 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 final order, dated January 5, 2022, concerning an equal employment opportunity (EEO) complaint claiming 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 accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Rural Carrier Associate at the Statesville Post Office in Statesville, North Carolina. The position required standing at a carrier case for two to three hours, casing letters, flats, and small parcels. Additionally, the job entailed lifting and pulling mail out of the case and placing it in a hamper, to transport the mail to delivery vehicles, and loading the mail into the vehicles. Parcels could weigh up to 70 pounds. After casing, a Rural Carrier Associate had to deliver the mail, which required walking, climbing stairs, lifting heavy packages, and carrying packages. 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. 2022001388 2 On October 30, 2013, Complainant suffered injuries which had an impact upon his back and caused bruising of his left leg. Complainant filed claims with the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). The claim regarding bruising was accepted. However, Complainant’s back claim was denied. The Agency states that since November 2013, Complainant has not been in active duty, with the exception of a few days in 2014 and 2015. In January 2020, Complainant’s first-line supervisor (“Postmaster”) saw his name on the “No Workhour” report. He contacted Complainant to discuss options for getting him back to work. According to Complainant, he is limited in standing, bending, stooping, lifting and twisting. However, he could answer phones. Following his phone call with Complainant, Postmaster contacted the Injury Compensation Office which advised him that Complainant could not return to a limited duty position because Complainant’s OWCP claim, for his back, was denied in July 2014. The Injury Compensation Office reasoned that Rural Carrier Associates are not contractually entitled to light duty and Complainant did not have an approved OWCP claim. Consequently, Postmaster submitted a referral to the District Reasonable Accommodation Committee (DRAC) on August 6, 2020. Thereafter, Complainant submitted medical forms to DRAC which indicated the following restrictions: no lifting more than five to ten pounds; no prolonged periods on feet; no repetitive bending or climbing. On October 1, 2020, DRAC met with Complainant as part of the interactive process. The parties were unable to identify a reasonable accommodation that would permit Complainant to perform the essential functions of the Rural Carrier Associate position. In correspondence dated November 10, 2020, DRAC informed Complainant that because it was unable to find a reasonable accommodation, it performed a 50-mile search for work within his restrictions. The search, however, was unsuccessful. In February 2021, Complainant was issued a Notice of Proposed Removal (Notice) based on medical inability. The Notice stated that, despite assurances Complainant made to Agency counsel, Complainant failed to provide additional medical documentation showing he could perform the essential functions of his Rural Carrier Associate position. Complainant’s removal became effective on July 20, 2021. On February 19, 2021, Complainant filed an EEO complaint alleging discrimination on the basis of disability (PTSD, degenerative disc in neck and lower back) when he was denied a reasonable accommodation in the form of a job assignment within his medical restrictions. After an investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. At an initial conference, the parties were granted a 60-day discovery period. Thereafter, the Agency filed a motion for summary judgment. When Complainant did not object, the AJ assigned to the case granted the Agency’s motion and issued a decision without a hearing on December 9, 2021. 2022001388 3 The AJ adopted the undisputed facts and legal analysis set forth in the Agency’s motion. In particular, the AJ noted that Postmaster informed DRAC of Complainant’s physical limitations, which included: no lifting more than five to ten pounds, no more than two hours on his feet, and no repetitive bending or climbing. Additionally, Complainant submitted a Reasonable Accommodation form, with information from his physician, to DRAC. During the meeting between DRAC and Complainant, it was determined that no reasonable accommodation would allow Complainant to perform the essential functions of his Rural Carrier Associate position. The AJ stated that when the Agency identified a vacant position in Charlotte, North Carolina (approximately thirty miles from Complainant’s home), he rejected the offer. Moreover, Complainant was unwilling to consider positions more than 50 miles from the Statesville Post Office. Therefore, the AJ concluded that the Agency did not violate the Rehabilitation Act. On January 5, 2022, the Agency issued a final order adopting the AJ’s finding of no discrimination. Complainant filed the instant appeal. Complainant did not submit any contentions or brief. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not asserted any material facts are in dispute. To bring a claim of disability discrimination, a complainant must first establish that he is disabled within the meaning of the Rehabilitation Act. An individual with a disability is one who has, has a record of, or is regarded as having a physical or mental impairment that substantially limits one or more of his major life activities. 29 C.F.R. § 1630.2(g). 2022001388 4 In this case, we shall assume, for the purposes of analysis, that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). Complainant also must show that he is a “qualified” individual with a disability within the meaning of 29 C.F.R. § 1630.2(m). We note that the discussion of “qualified” does not end at Complainant's position of record. The term “qualified individual with a disability,” with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term “position” is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is “qualified,” an agency must look beyond the position which the employee presently encumbers. In such circumstances, a reasonable accommodation may be a reassignment. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance - Reasonable Accommodation), No. 915.002 (revised Oct. 17, 2002); see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o). In the instant case, Complainant alleges that the Agency denied him a reasonable accommodation when it did not provide him a job assignment within his medical restrictions. Complainant desired ongoing limited or light duty assignments. Complainant attested he was able to answer the phone. The Commission notes that an employer is not required to create a job for a disabled employee, nor is it required to transform its temporary light or limited-duty assignments into permanent jobs to accommodate an employee's disability. See Mengine v. Runyon, 114 F.3d 415, 418 (3rd Cir. 1997) see also Woodard v. U.S. Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement Guidance: Workers Compensation and the ADA, EEOC Notice No. 915.002 at 21 (Sept. 3, 1996). Moreover, to the extent that Complainant admits he could not perform the essential functions of his job, he was not “qualified” for the Rural Carrier Associate position and could request a reassignment as a reasonable accommodation. In general, reassignment is the reasonable accommodation of last resort and should be considered only when there are no effective accommodations that would enable an employee to perform the essential functions of his current position or accommodating the employee in the current position would cause an undue hardship. See Donna S. v. Dep't of Def., EEOC Appeal No 0120160652 (May 16, 2018); see also 29 C.F.R. Part 1630. App. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, “Reassignment.” Here, the Agency asserts, and Complainant does not dispute, that he was offered a position performing blue door duties at the WT Harris Post Office in Charlotte, North Carolina, but that Complainant rejected the offer. Consequently, we find that when the Agency offered Complainant this position, it fulfilled its obligations under the Rehabilitation Act. Complainant is reminded that while he is entitled to an effective accommodation, he is not entitled to the accommodation of his choice. See e.g., Casteneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (1994). In addition, Complainant also failed to identify any other vacant funded position for which he qualified and to which he could have been reassigned. 2022001388 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2022001388 6 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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 January 31, 2023 Date