[Redacted], Karen S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Sep 22, 2022

Appeal No. 2021003550 (E.E.O.C. Sep. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karen S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2021003550 Hearing No. 530-2018-00156X Agency No. 4C-250-0026-17 DECISION On May 28, 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 April 20, 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 was a Rural Carrier, R-00, at the Agency’s Post Office in Martinsburg, West Virginia. On September 21, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of disability (Post-Traumatic Stress Disorder (PTSD)) when, on or about June 27, 2017, her reasonable accommodation request was denied.2 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. 2 The Agency dismissed two additional claims for untimely EEO counselor contact and for failure to state a claim. Complainant raised no challenges regarding these matters and the Commission can find no basis to disturb the Agency’s dismissal decision. 2021003550 2 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency.3 In the decision, the AJ determined that, as a result of multiple dog attacks while working as a Rural Carrier, Complainant experienced complications from PTSD. Following the most recent dog bite, on February 21, 2017, Complainant requested an accommodation that would “limit [her] uncontrolled exposure to dogs.” Complainant did not dispute that she could not perform the essential duties of her position as rural carrier, with or without an accommodation, as she has not identified any accommodation that could ensure that she would not encounter dogs, nor has she identified a vacant, funded position into which she could be reassigned. As a result, the AJ found that Complainant was not a qualified individual with a disability under the Rehabilitation Act. Complainant argued that the Agency should have reassigned her or created a job for her that she could fully perform. Complainant first requested that she be permanently reassigned to her limited duty position as an accommodation. In that position, she performed half of the essential functions of the rural carrier position (casing the mail) and half of the job of a clerk (inside duties). The AJ noted that the Agency was not required to create a position as an accommodation. Further, the AJ added that agencies are not required to create “make work” jobs, provide “make do” work, or transform limited or light duty assignments into permanent jobs to accommodate an employee. The Agency provided undisputed evidence that Complainant could not be given a job inside of the office without crossing contractual boundaries of other crafts. Thus, the AJ found that the Agency did not fail to accommodate Complainant when it denied her request for permanent reassignment to her limited duty position or a position outside of her craft. The AJ noted that while Complainant was not working a limited duty position, she was placed on leave without pay. Permitting the use of leave (paid or unpaid) is explicitly identified as a form of reasonable accommodation when necessitated by an employee’s medical condition. As a result, placing Complainant in a leave without pay (LWOP) status under these circumstances may also be considered a form of reasonable accommodation. Notwithstanding, the Agency provided evidence that Complainant was ultimately compensated from May 17, 2017 to October 2, 2017, when the denial of her workers’ compensation claim was reversed. Finally, the AJ noted that the collective bargaining agreement allowed for the creation of a “Phantom Route.” The Phantom Route was a type of placeholder for a rural carrier who was injured on the job, is not able to work their assigned route for a period of two years and is forced to relinquish their route. 3 The AJ consolidated this complaint with a second complaint (Agency No. 4C-250-0011-18) under EEOC Hearing No. 530-2018-00156X but issued separate decisions. The Commission addressed the claims raised in Agency No. 4C-250-0011-18 in Karen S. v. U.S. Postal Serv., EEOC Appeal No. 2021003580 (Sept. 19, 2022). 2021003550 3 Only at that point, and while they are not performing a limited duty assignment, can the rural carrier be assigned to the Phantom Route as a placeholder until a permanent position can be found. The AJ noted that this is what occurred with Complainant after a period of two years, when her route was relinquished and Complainant was not in a limited duty position, and she was on LWOP. As a result, the AJ concluded that Complainant failed to demonstrate that the Agency denied her reasonable accommodation in violation of the Rehabilitation Act. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. 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 failed to provide Complainant with a reasonable accommodation or was motivated by discriminatory 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 factfinder could not find in her 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 preponderance of the evidence did not establish that Complainant was subjected to the discrimination, as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021003550 4 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. 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). 2021003550 5 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 22, 2022 Date