Wilda M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 9, 2017

0120150041 (E.E.O.C. Mar. 9, 2017)

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

Wilda M.,1
Complainant,

v.

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

Appeal No. 0120150041

Hearing No. 530-2010-00046X

Agency No. 1C-081-0002-09

DECISION

On September 29, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s July 28, 2014, final order concerning her equal employment opportunity
(EEO) complaint alleging 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final order.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the South Jersey Processing and Distribution Center located in Bellmar, New Jersey.
On November 19, 2008, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), color (black), disability

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 asserts that the Appeal is not timely, but has failed to submit sufficient proof of
such assertion, which is its burden. Accordingly, we find the appeal timely filed.
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(dislocation of left shoulder), and in reprisal for prior protected EEO activity when:3 (1) on
June 18, 2008, she was denied an accommodation when the Agency sent her home and
informed her that there was no work available within her medical restrictions; (2) on an
unknown date, she was instructed to return to work but was subsequently sent home on June
25, 2008; (3) on or about March 26, 2009, the Agency deducted $200.00 from her pay to
collect a postal debt; and (4) on May 27, 2009, she was asked to leave the facility and notified
that she was terminated.

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. On April 5, 2010, the
Agency submitted a motion for summary judgment which was not opposed by Complainant.
On July 18, 2014, the AJ assigned to the case granted the Agency’s motion and issued a
decision without a hearing. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

FACTUAL BACKGROUND

Pursuant to the standard position description, a Mail Processing Clerk, on a rotational basis,
performs all of the following duties: “loads mail onto automated equipment, culling out
nonprocessable items; enters sort plan and starts equipment; monitors flow of mail to ensure
continuous feed; sweeps separated mail from bins/stackers; and stops equipment when
distribution run or operation is completed. Runs machine reports, clears jams and contacts
maintenance for assistance when required ... removes sorted mail from bins or separations and
places into appropriate trays or containers for further processing ...” Pursuant to the
Bargaining Unit Qualification Standard, Mail Processing Clerks must be physically able to
efficiently perform the duties of the position, which may require arduous exertion involving
prolonged standing, walking, bending and reaching, and may involve the handling of heavy
containers of mail weighing up to 70 pounds.

On May 24, 2007, Complainant suffered a work-related dislocation of the left shoulder.
Complainant's medical provider released her to return to work on October 19, 2007, with no
lifting with left arm, a one-pound lifting restriction and no overhead activities. On October 30,
2007, the Agency offered Complainant a Modified Assignment-Limited Duty to PARS Waste
Mail Verification (PARS) for eight hours within her physical restrictions. On November 21,
2007, Complainant began working in this modified job assignment. Complainant worked this

3 This case arose before January 1, 2009, the effective date of the Americans with Disabilities
Act Amendments Act of 2008, which made a number of significant changes to the definition of
disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
Because this matter arose in 2008, the Commission will use the analytical framework as it
existed before the enactment of the ADA Amendments Act of 2008, to determine whether
Complainant is an individual with a disability.
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assignment as a trial to determine if she could return to her original assignment (Automation).
On February 25, 2008, Complainant's left arm lifting restriction was increased on a trial basis
to 20 pounds. On April 2, 2008, Complainant’s physician (P1) modified her restrictions and
approved her to work six hours in Automation with a 20-pound lifting restriction. Thereafter,
Complainant began working two hours in PARS and up to six hours in Automation on a trial
basis to transition back to her original bid position, Mail Processing Clerk.

Claims 1 and 2

On June 18, 2008, Complainant submitted medical documentation increasing her medical
restrictions to “no lifting over one pound and no reaching” for eight hours per day.
Complainant filed a claim with the Department of Labor’s Office of Workers’ Compensation
Programs (OWCP). Upon review of Complainant's medical restrictions, management officials
determined that the new documentation was inadequate. Complainant was advised that there
was no work within her restrictions and instructed her to provide more adequate
documentation.

On June 25, 2008, Complainant submitted a note dated June 23, 2008, from P1. Again,
management determined that the documentation was inadequate. The Agency then requested a
job suitability determination from OWCP. As of September 8, 2008, OWCP was unable to
complete the suitability determination due to conflicting medical evidence. Complainant was
instructed to complete necessary forms to obtain benefits from the Department of Labor.
According to Complainant, OWCP informed her that she “would be paid for no work
available.” Immediately upon receipt of Complainant's claim forms, management began
completing the forms necessary for OWCP to process payments to Complainant. However, on
September 18, 2008, OWCP denied Complainant's claim for recurrence because: (a) there was
insufficient evidence of recurrence; (b) there was no explanation for the sudden decrease in her
ability to perform the duties of the limited duty position; (c) there was no change in the duties
of the limited duty position; and (d) on August 21, 2008, an impartial specialist (P2)
determined that Complainant could return to full duty. OWCP's denial meant that
Complainant was not entitled to compensation benefits.

On September 23, 2008, the Agency sent Complainant an “Official Directive-Return to Work”
letter noting that OWCP notified the Agency on September 18, 2008, that two Independent
Medical Exams found her fit to perform the full duties of her pre-injury work assignment. On
October 6, 2008, the Agency sent Complainant a second Official Directive-Return to Work.
Complainant did not return to work. In November 2008, Complainant submitted a request for
light duty that did not contain weight limitations. On December 11, 2008, P1 provided the
weight limitations requested. P1 released Complainant to return to work with a ten-pound
lifting restriction on her left shoulder. Complainant returned to work on December 30, 2008.

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Claim 3

While Complainant was out of work, the Agency maintained Complainant's health insurance
coverage by making payments on Complainant's behalf. On February 19, 2009, the Agency
wrote to Complainant to advise that she was indebted to the Agency in the amount of $867.00
for health insurance coverage for pay periods 15/08 (July 7, 2008) through 26/08 (December
19, 2008).

On or about March 11, 2009, Complainant requested a waiver of the Agency's collection
efforts. Pursuant to Section 461.4 of the Employee and Labor Relations Manual (ELM),
waiver requests do not stay collection efforts. Pursuant to Section 462.22 of the ELM,
bargaining unit employees may file a grievance within 14 days of receipt of a letter of demand.
Collection efforts will be stayed pursuant to ELM Section 462.41 only if the grievance is
timely filed. Complainant was required to file a grievance in response to the February 19,
2009 demand letter by March 5, 2009. Complainant did not file a grievance within 14 days of
receipt of the demand letter. On March 26, 2009, the Agency began collecting the debt by
wage withholding. Thereafter, Complainant's union filed a grievance on her behalf. The only
grievance documentation of record is dated May 1, 2009 (i.e., 72 days after February 19,
2009, and more than two months after the final grievance was required to be filed).

Claim 4

On May 27, 2009, Complainant approached one of her supervisors (S1) and demanded that S1
immediately hold a Step 1 grievance. Complainant had not made an appointment as required
and she had waited until the last day to request the grievance. S1 advised Complainant that she
was busy. Complainant refused to take no for an answer and began to badger S1. S1 then
referred the matter to another supervisor (S2). S2 referred the matter to the Manager of
Distribution Operations (M1). M1 observed Complainant's actions for a few minutes and then
advised Complainant that she could not disrupt operations by demanding an audience. M1
identified herself and instructed S1 to continue with her duties. Complainant began ranting and
raving, calling M1 a liar and demanding that she get her boss. M1 instructed Complainant to
“leave the area or leave the building.” Complainant refused to leave the area and continued to
create a disturbance. M1 instructed Complainant to go to the office. Complainant went to the
union office, and continued to be loud and disruptive. Upon arrival at the union office, M1
instructed Complainant to leave the building. Complainant refused to leave. M1 called the
Plant Manager (M2) to advise M2 that an employee was being escorted from the building.
While M1 was on the phone with the M2, M2 and the Manager of Distribution Operations
(M3) could hear Complainant yelling through the phone. M2 and M3 went to the union office
where they personally observed Complainant's conduct. Complainant was screaming, "you
got the right one this time," "you're a liar," and "this is what I want." Complainant was
advised that she was being put on emergency placement and escorted from the building due to
her conduct. The record does not reflect that the Agency initiated a removal action against
Complainant.

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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).

We find that the AJ properly issued a decision without a hearing as Complainant has not
demonstrated that there were material facts in dispute such that a hearing was necessary to
make findings of fact or credibility. We note that Complainant failed to submit any opposition
to the Agency’s motion for summary judgment.

We agree with the conclusions reached by the AJ. With respect to Complainant’s harassment
and disparate treatment claims, the AJ concluded that Complainant failed to present evidence
that the Agency’s legitimate non-discriminatory reasons for its employment actions were a
pretext for discrimination, or were otherwise motivated by discriminatory or retaliatory
animus. The AJ also noted that the evidence fails to show that any identified comparison
employees had physical restrictions similar to Complainant’s restrictions.

With respect to the reasonable accommodation claim, the AJ concluded that the undisputed
record shows that Complainant was not qualified to perform the essential functions of her
position because of her one-pound lifting restriction. We also find that the record shows that
Complainant failed to provide adequate medical documentation to the Agency (between June
and November 2008) in order for the Agency to determine whether work was available within
her physical restrictions. In the absence of any argument from Complainant in support of her
appeal, aside from her contention that her appeal was filed in a timely manner, we find that
Complainant has not established that the AJ incorrectly concluded that she had not shown that
the Agency discriminated against her based on her race, color, disability, or in reprisal for her
prior protected EEO activity.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency’s decision adopting
the AJ’s finding of no discrimination or reprisal as alleged.
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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 tends 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.
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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

March 9, 2017
Date