0120142732
05-19-2016
Sara S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sara S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120142732
Agency No. 4J606016610
DECISION
On July 26, 2014, Complainant filed an appeal from the Agency's June 25, 2014, final decision 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant on the basis of disability (neurological) when:
1. on June 4, and June 14, 2010, Complainant requested a reasonable accommodation and was denied; and
2. on September 2, 2010, the Agency understated her rate of pay.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Roberto Clemente Station in Chicago, Illinois. On March 1, 1999, Complainant sustained a work-related injury and was in an off-duty status since January 21, 2001.
In 2008, Complainant requested a reasonable accommodation and met with the Agency's District Reasonable Accommodation Committee (DRAC) on April 7, 2008. She requested a modified assignment with restrictions of no pushing/pulling/lifting over five pounds; no bending or stooping; and primarily sedentary duties requiring a chair with back support. On July 30, 2009, the Agency notified Complainant that her request for a reasonable accommodation was denied because Complainant's physician (DR1) did not provide sufficient medical rationale to support Complainant's claim that she was an individual with a disability, as defined by the Rehabilitation Act. In response to the denial, Complainant provided a statement from DR1, dated August 27, 2009. DR1 stated that Complainant was an individual with a disability due to her physical impairment; specifically, she was restricted in her ability to walk, stand, bend, lift, push, pull, and carry. DR1 also stated that Complainant was able to work, with restrictions.2
On June 4, 2010, and June 14, 2010, Complainant sent a letter to the Manager, Health and Resource Management (MHRM), requesting a reasonable accommodation. Complainant argued that the July 30, 2009, denial of her accommodation was inconsistent with the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Complainant did not specify the accommodation she was requesting in the letter, nor did she provide any additional supporting documentation. Complainant sent letters requesting a reassignment to a secretary position to the Light Duty Coordinator (LDC) on June 4, 2010, and a Human Resources Manager (HRM) on June 14, 2010.3
On July 29, 2010, Complainant hand-delivered her CA-7 form to the Acting Manager (AM) of the Roberto Clemente Station.4 When she learned that the Department of Labor (DoL) did not receive her form, she contacted AM, who stated that he would forward it to the Injury Compensation Unit. On August 23, 2010, Complainant learned that the DoL still had not received her form, and contacted a Specialist, Health and Resource Management (SHRM),who submitted her form on October 15, 2010.
On July 30, 2010, a Senior Claims Examiner (SCE) from the DoL Office of Workers' Compensation Program called the MHRM to verify information related to Complainant's claims for December 1, 2007, through June 30, 2010. The SCE noted that Complainant provided information noting that her salary was $51,982, at the 01/H level. The MHRM stated that Complainant had not advanced to that level, but would have had she continued to work. The MHRM also stated that Complainant's salary on the date of her injury was $42,611, at the 5/A level. The SCE followed-up with a letter sent to the Agency's Injury Compensation Officer on September 1, 2010, requesting clarification regarding Complainant's salary.
On September 6, 2010, Complainant filed a mixed-case complaint alleging that the Agency discriminated against her on the basis of disability (neurological) when:
3. on June 4, and June 14, 2010, she requested a reasonable accommodation and was denied;
4. on July 29, 2010, the Agency did not process her CA-7 in a timely manner and;
5. on September 2, 2010, the Agency understated her rate of pay.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and issued a final decision on March 30, 2011. Complainant then filed an appeal of the final decision with the Merit Systems Protection Board (MSPB). The MSPB Administrative Judge (AJ) held a jurisdictional hearing and found that Complainant had failed to establish jurisdiction over her restoration appeal. Complainant then filed a petition for review with the full MSPB Board, which affirmed the MSPB AJ's finding that Complainant had not established jurisdiction on April 11, 2014. Afterward, the Agency advised Complainant of her right to request a hearing before an EEOC AJ or a final agency decision without a hearing, and Complainant requested a final decision. The Agency issued the final decision on June 25, 2014, which concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In regards to Complainant's allegation that the Agency discriminated against her when it failed to provide her with a reasonable accommodation, the Agency found that Complainant had not shown that she was an individual with a disability. While the Agency noted that Complainant had a record of a physical condition, it determined that Complainant had not provided evidence that she was substantially limited in her ability to perform a major life activity.
Additionally, the Agency found that Complainant had not shown that she was a qualified individual with a disability because she did not show that she could perform the core primary duties of her position as a City Carrier, with or without an accommodation. The MHRM stated that she did receive Complainant's requests for reasonable accommodation in June 2010, but that that she did not reply to Complainant's letters because nothing had changed. The MHRM stated that Complainant was still unable to perform any of her core duties. Accordingly, the Agency found that it did not discriminate against Complainant when it failed to provide her with a reasonable accommodation.
The Agency also found that Complainant had not shown that she was disparately treated when she was not provided with an accommodation. While Complainant did not identify any comparators who were allegedly treated more favorably, the Agency found that she did not present any evidence that affords a sufficient basis from which to draw an inference of discrimination. As such, the Agency determined that Complainant had not established a prima facie case of disability discrimination claim of disparate treatment when the Agency failed to provide a reasonable accommodation.
For Complainant's other disparate treatment claims, the Agency assumed, without finding, that Complainant established a prima facie case of disability discrimination. The Agency then found that management officials articulated legitimate, non-discriminatory reasons for their actions. In response to Complainant's allegation that the Agency discriminated against her when it failed to timely process her CA-7 form, the SHRM stated that she received a call from a union representative regarding Complainant's form but that she had not received it, and requested that Complainant submit a new form. The SHRM stated that she received the new form on October 15, 2010, and processed it on the same day.
For Complainant's claim that the Agency understated her pay to DoL, the MHRM stated that since Complainant had not worked since 2002, she was not entitled to any step increases while she was in a non-pay status. The MHRM also stated that she believed that the SCE contacted her to verify Complainant's pay on the date of her injury because Complainant had provided him information which raised questions. The MRHM stated that Complainant had been paid at a higher rate to attend two investigative interviews in 2009, but that SCE needed confirmation about her pay rate on the date of Complainant's injury in 1999.
The Agency found that there was no indication that management's decisions were based on Complainant's disability, and that Complainant did not provide any evidence to show that the proffered legitimate, non-discriminatory reasons were pretext for discrimination. The Agency concluded that Complainant did not show that the Agency discriminated against her based on disability when it failed to provide a reasonable accommodation; untimely processed her CA-7 form; and understated her rate of pay.
Complainant then filed the instant appeal and submitted a brief in support of her appeal on August 25, 2014. The Agency did not file a reply to Complainant's appeal.
CONTENTIONS ON APPEAL
In regards to Complainant's disability discrimination claim that the Agency failed to accommodate her, Complainant argues that the Agency did not address her request; did not ask what her qualifications were; and never considered her re-assignment request. On appeal, Complainant raises for the first time that she was discriminated against based on reprisal for prior EEO activity when the Agency failed to accommodate her.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
As an initial matter, we note that Complainant withdrew her claim alleging that she was discriminated against when the Agency untimely processed her CA-7 form. Additionally, this decision will not address Complainant's claim that the Agency discriminated against her on the basis of reprisal for prior EEO activity when it failed to provide a reasonable accommodation because the Commission cannot address an issue raised for the first time on appeal.
Failure to Provide Reasonable Accommodation
Under the Commission's regulations, an agency is required to make 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 an undue hardship. 29 C.F.R. � 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
Complainant argues that the Agency discriminated against her when it failed to address her requests for accommodation in June 2010. The MHRM admitted that she did not act upon Complainant's requests. The Commission previously has held that an agency cannot be held liable solely for failing to engage in the interactive process, but can be found liable if the failure to engage in the interactive process resulted in the agency's failure to provide a reasonable accommodation. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). In other words, an agency's failure to engage in the interactive process does not, in itself, constitute a violation of the Rehabilitation Act. See Pitts v. U.S. Postal Serv., EEOC Appeal No. 0120130039 (Mar. 13. 2013) (citing Doe v. Social Sec. Admin.. Appeal No. 01A14791 (Feb. 21, 2003)). Liability depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation. Id. Accordingly, the fact that the Agency failed to properly engage in the interactive process, does not, by itself, demand a finding that Complainant was denied a reasonable accommodation. Rather, to establish a denial of a reasonable accommodation, Complainant must establish that the failure to engage in the interactive process resulted in the Agency's failure to provide a reasonable accommodation. Id.
Complainant argues that the Agency erred when it determined that she was not an individual with a disability because it did not consider the ADAAA, which took effect on January 1, 2009. We find that when the Agency issued Complainant a notice denying her request for reasonable accommodation on July 30, 2009, it was not clear if they analyzed whether she was an individual with a disability pursuant to the ADAAA. Additionally, Complainant provided a statement from DR1 which provides additional information regarding her medical limitations. While this statement was not provided until after the July 30, 2009, decision was rendered, it should have been considered when Complainant renewed her request in June 2010. However, for the purposes of this decision, we will assume, without deciding, that Complainant was an individual with a disability.
A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m). Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � 1630.2(n)(3).
In Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002), the Commission clarified its position regarding the standard for assessing liability for reassignment. Specifically, the Commission determined that, with respect to reassignment, the burden is on an employee to establish by a preponderance of the evidence that there were vacancies into which they could have been reassigned during the relevant time period. Id. An employee can establish this by producing evidence of particular vacancies, or, in the alternative, they can show that: (1) they were qualified to perform a job or jobs which existed at the Agency, and (2) there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. Id.
In this case, it appears that Complainant had identified a vacancy that she was requesting to be reassigned to, 0318-0007 Secretary (FLD) EAS-12, Carol Stream, Illinois. However, she has not shown that this was a vacant, funded position. Additionally, she has not submitted any evidence showing that she was qualified to perform the essential functions of the secretary position she was seeking, or that there was a likelihood that a secretary position would become available. While Complainant argues that the Agency should have requested that she provide documentation of her qualifications, Complainant bears the burden to show that she was qualified to perform the duties of the secretary position, and has not done so. Complainant also provided a list of vacant positions, but we find that these positions were available in 2013, well past the relevant time period of the summer of 2010.
We find that Complainant has not shown that the Agency discriminated against her when it failed to provide her with a reasonable accommodation because she has not established that she was a qualified individual with a disability. However, while Complainant was ultimately unable to show that the Agency's failure to engage in the interactive process was the reason that she was not effectively accommodated, we remind the Agency that it has an obligation to engage in the interactive process with those requesting reasonable accommodations.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant had established a prima facie case of disability discrimination when the Agency understated her rate of pay on or around September 2, 2010, we find that the Agency articulated a legitimate, non-discriminatory reason for its action. The MHRM stated that she was asked to provide clarification regarding Complainant's rate of pay at the time of her injury. The record also shows that the SCE sent a follow-up letter specifically requesting information about the "rate for [Complainant's] date of injury."
Complainant has not provided any persuasive evidence that the Agency's proffered legitimate, non-discriminatory reason was pretext for discrimination or that the MHRM's action was discriminatory. Accordingly, we find that the Agency did not discriminate against Complainant on the basis of disability when it understated her rate of pay on September 2, 2010.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding that Complainant had not shown that the Agency discriminated against her based on disability when it failed to provide a reasonable accommodation and when it understated her rate of pay.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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 (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
_5/19/16_________________
Date
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 Nothing in the record indicates that the Complainant or the Agency took any action after this document was submitted.
3 The letter addressed to HRM also indicated that a carbon copy was sent to MRHM.
4 The CA-7 form is the Department of Labor's "Claim for Compensation" form.
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