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

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022000485 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eileen S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, (Field Areas and Regions), Agency. Appeal No. 2022000485 Hearing No. 520-2021-00152X Agency No. 4B-100-0137-16 DECISION On November 3, 2021, 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 September 28, 2021 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. 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 as a City Carrier Technician, A-02/Q, at the Agency’s Village Station in New York, New York. On September 30, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (on-the-job injury) and in reprisal for prior protected EEO activity when: 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. 2022000485 2 1. Since June 26, 2016, and continuing, management has assigned Complainant work outside of her medical restrictions and failed to pay her properly and/or on time; 2. On October 4, 2016, and other unspecified dates, her clock rings were deleted; and 3. On unspecified dates, Complainant’s request to be detailed as a 204-B has not been granted.2 Complainant was employed as a City Carrier Technician, assigned to the Village Station. Report of Investigation, Affidavit A at 190, Exhibit 1. The duties of a Carrier Technician were to case and deliver mail for several carrier routes. The duties include pushing, lifting, simple grasping daily for eight hours a day. ROI, Affidavit C2. Complainant attributes her medical conditions to a recurrence of an on-the-job injury. She was first diagnosed on May 10, 2014, which is noted in the record by her physician as the date of the injury. ROI at 64-65. She averred that her medical conditions are a back sprain, displacement of lumbar intervertebral disc without myelopathy, and a hernia, which she had repaired after the on- the-job injury. ROI, Complainant’s Affidavit, at 191. Complainant’s medical restrictions include sitting three hours, walking limited to 30 minutes, standing 10 minutes, avoiding reaching above the shoulder, twisting, bending, stooping, pushing, pulling, lifting, squatting, kneeling, and climbing. She also required 15-minute breaks every hour. ROI at 191. She had been out on leave for an extended period. When she returned, she was assigned to the Lenox Hill Station. On June 22, 2016, an offer was made to Complainant for a limited duty modified assignment to work at the Lenox Hill South Station from 10:00 a.m. to 2:00 p.m. The position was not a vacant, funded position. The position involved shuttling carriers by van to and from their routes and delivering express mail under five pounds for up to four hours a day and up to 30 minutes respectively. On paper, this met Complainant’s restrictions. Complainant signed the modified job offer on July 1, 2016, and she began the assignment on or about July 18, 2016. ROI at 196, 233. Although Complainant felt the modified job assignment would be too much for her, she told her Manager that she would try it, and let him know if she was unable to handle it, and he agreed. ROI at 196. The Manager testified that he became aware of the Complainant’s medical condition through the job offer. He denied receiving, or having, any medical documentation for Complainant. 2 The Agency dismissed an additional claim for failure to state a claim. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s dismissal decision. 2022000485 3 The record shows that Complainant had been offered another light duty job, to serve as a lobby attendant. Complainant declined the lobby attendant position. Complainant believed it would be beyond what she could do, given her restrictions. The undisputed record shows that the Manager gave her instructions to make an express delivery, which he believed conformed to her medical restrictions. ROI at 196. Complainant claimed that, on August 29, 2016, she walked an hour (with breaks), even though she was not supposed to walk more than 30 minutes. She was not permitted the use of the van. Using the van, as indicated in the modified job offer, would require her to stoop and twist to get in the vehicle. Even picking up an envelope that dropped on the ground would be a violation of her restrictions to avoid stooping. ROI at 196. The record shows that Complainant was out on leave for significant periods of time in July and August 2016. Some of Complainant’s clock rings had been deleted for the dates July 18, 2016, through July 28, 2016, and her time was coded as full workers’ compensation. Complainant had just started working at the Lenox Hill Station and the receiving station should have entered her time. ROI, Affidavit A. The Manager averred that Complainant had an incorrect leave code in the system. ROI, Affidavit B. She did not return to work until October 4, 2016, to fill out workers’ compensation paperwork and again on November 14, 2016, to fill out additional paperwork. As further background, Complainant had recently come back from being on full time workers’ compensation. Because Complainant switched from one facility to another - from Village Station to Lenox Hill, there is insufficient evidence that the supervisor at the receiving facility realized she had returned to work from being out on workers’ compensation. Complainant asserted that her Manager’s poor organization was another reason for the errors that were made. ROI at 197-198 (209-210). The deletion of the clock rings was discovered before her EEO filing that is the subject of this appeal. Meanwhile, on September 14, 2016, she filed a grievance regarding the payment failures and the deleted clock rings. The Agency maintained that the payment failures were due to plain error.3 In addition, Complainant averred that she requested to serve as an acting supervisor (204B) over the carriers. On or about November 14, 2016, the Manager did not offer her a 204B detail as a reasonable accommodation. The Manager averred he did not need any acting supervisors for his operations. In addition, he averred that he believed that supervisors must be punctual and reliable, which were attributes that he did not observe in Complainant. ROI, Affidavit B. 3 In addition, the record shows that manual timecards had been submitted and lost. Complainant cited the errors that had been made and believed they may have been caused by the Agency not having a disk which would have allowed Complainant to log her hours automatically, rather than manually. 2022000485 4 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. The AJ assigned to the case issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination or reprisal as alleged. In the decision, the AJ found that Complainant was not denied reasonable accommodation as alleged in claim (1). The AJ determined that Complainant was provided a modified limited duty assignment of shuttling carriers in a van and delivering express mail which was within her documented medical restrictions. Complainant believed that the job was too much for her. The Agency offered Complainant another modified assignment of lobby attendant, but she declined the position. The AJ noted that Complainant claimed another modified assignment that was offered and rescinded would have met her needs, but that position contained similar tasks as the lobby attendant position that she declined. The AJ determined that there was no evidence that Complainant was forced to work outside of her medical restrictions. Thus, Complainant appeared to have been unable to perform her job with or without a reasonable accommodation as her medical restrictions were so severe. Therefore, the AJ found that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. With respect to the remaining issues, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. More specifically, with respect to her claims that she was not paid properly and her clock rings were deleted, Agency officials explained that errors occurred for a number or reasons. For example, Complainant returned to full-time duty from workers’ compensation so supervisors at the other facility may not have realized she had returned to work. In addition, Complainant switched from one facility to another. Another reason was because manual timecards were submitted and lost instead of digital submission which would have prevented the issue. Finally, Complainant herself noted that the Manager had poor organizational skills which contributed to the errors. As to her claim that her request to be detailed as a 204-B acting supervisor was not granted, Complainant claimed that the Manager and another manager “brushed her off” and that she mentioned the detail as a way for her to be accommodated. The Manager offered her the two above-discussed positions as accommodations. Complainant stated that instead of training her for a 204-B position, she was told she could apply for a city-wide position that would take time to obtain. The AJ determined that Complainant wanted a manager to promote her on the spot rather than actually applying for the detail assignment. The AJ found that Complainant failed to show that the denial of the detail was a result of discriminatory or retaliatory animus. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. 2022000485 5 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). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the Agency was entitled to summary judgment, because the evidence did not establish a genuine dispute of material fact warranting a hearing. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2022000485 6 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. 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. 2022000485 7 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 26, 2023 Date