U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eileen S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120150199 Hearing No. 520-2012-00378X Agency No. 4B-117-0007-12 DECISION On October 15, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's October 7, 2014, final decision (FAD) 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 MODIFIES the Agency's FAD. ISSUES PRESENTED The issues presented are whether Complainant established that the Agency discriminated against her based on disability (herniated neck discs) when: (1) it denied her request to not carry a mail satchel, did not allow her to perform her street duties, and sent her home after she completed her office duties; and (2) it issued her a 14-day suspension.2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Hicksville Post Office in New York.3 Beginning in 2011, Complainant's chain of command included the Supervisor, Customer Services (S1) and the Postmaster (P1). Report of Investigation (ROI), at 193, 286. A carrier's duties include office duties (casing mail) and street duties (delivering mail). Id. at 244-45. The position description states that a carrier may be required to carry mail weighing up to 35 pounds in shoulder satchels or other equipment. Id. at 342. Agency policy states that a carrier must use a satchel when delivering mail on foot, but can use a single satchel or a double satchel. Id. at 249. For a double satchel, a carrier has the option of wearing it in several configurations; it can be used with or without the shoulder straps and waist belt. Id. Agency policy states that, to prevent dog bites when confronted by a dog, a carrier should place the satchel between her and the dog to serve as protection if the dog decides to attack. Id. at 253. From 1996 to 2011, previous management allowed Complainant to deliver mail without carrying the satchel. Id. at 116, 156-57, 335. Medical documentation dated April 14, 2006 and March 10, 2008 states that, because Complainant has herniated neck discs from a 1996 motor vehicle accident, she could not carry any type of shoulder bag. Id. at 151-52. Medical documentation dated March 10, 2008 states that Complainant has had chronic neck pain since the 1996 motor vehicle accident and that the duration of the condition was permanent/indefinite. Id. at 153-55. The record also indicates that Complainant was injured from a dog attack in 2004. Id. at 274. On October 28, 2011, Complainant submitted medical documentation dated October 26, 2011 to management. Id. at 116. Specifically, the medical documentation stated the following: "[Complainant] has a past neck injury and herniated neck discs. She is unable to carry the mail satchel." Id. at 130. Management insisted that Complainant carry the satchel on her shoulder, even though she offered alternative suggestions such as using a push cart, carrying the satchel on her arm, or wearing the satchel around her hips. Id. at 107, 116, 118-119. Management asked Complainant if she could carry an empty satchel, but she stated that she could not endure the pain of carrying an empty satchel. Id. at 80, 336. From October 28, 2011 through November 7, 2011, based on Complainant's medical documentation and Agency policy requiring a carrier to use a satchel when delivering mail, management did not allow Complainant to perform her street duties and sent her home after she completed her office duties. Id. at 182, 206-09, 336. Complainant used a combination of annual leave (AL) and leave without pay (LWOP) for the hours she was sent home. Id. at 213-19. Complainant resumed her street duties on November 8, 2011. Id. at 209. On November 29, 2011, management issued Complainant a 14-day no time-off suspension based on two charges: extension of street time and failure to work in a safe manner (not carrying a satchel), both on November 28, 2011.4 Id. at 146-47. Specifically, management stated that Complainant needed 8 hours and 21 minutes to deliver a route that should have only taken 5 hours and 20 minutes. In addition, management stated that, based on her clock rings and a sunset time of 5:00 p.m., Complainant had over 7 hours of daylight to complete the route. Moreover, management stated that it saw Complainant delivering mail without wearing her mail satchel, even though carriers were required to do so as a defense against dog attacks. On February 14, 2012, Complainant filed an EEO complaint alleging, in pertinent part, that the Agency discriminated against her based on disability (herniated neck discs) when: 1. From October 28, 2011 through November 7, 2011, it did not allow her to perform her street duties and sent her home after she completed her office duties; and 2. On November 29, 2011, it issued her a 14-day suspension. After the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant did not prove that the Agency subjected her to disability discrimination as alleged. First, the FAD found that Complainant was not an individual with a disability. FAD, at 15. Second, the FAD found that, assuming Complainant was an individual with a disability, she was otherwise qualified for the carrier position. Id. at 17. Third, the FAD found that Complainant did not request reasonable accommodation and that management offered her the alternative of carrying an empty satchel. Id. Fourth, the FAD found that management articulated legitimate, nondiscriminatory reasons for issuing Complainant the 14-day suspension and she did not establish that those reasons were pretextual. Id. at 25-30. CONTENTIONS ON APPEAL On appeal, Complainant focuses on her disability discrimination claim. Among other things, Complainant argues that she could not carry the satchel on her shoulder because of her medical condition, but management ordered her to do so or be sent home unable to work. In addition, Complainant argues that management denied her numerous requests for a push cart, a dual hip satchel, or any other alternative to carrying the satchel on her shoulder. Moreover, Complainant argues that previous management had, for over 10 years, found her medical documentation to be acceptable. Finally, Complainant argues that management should not have issued her the 14-day suspension because she was carrying the satchel, just in her arm rather than on her shoulder. In opposition to Complainant's appeal, the Agency contends that the FAD fully addressed all the relevant issues and requests that we affirm the FAD's finding of no discrimination. 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 EEO MD-110, Ch. 9, § VI.A (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"). ANALYSIS AND FINDINGS Denial of Reasonable Accommodation I. Individual with a Disability The events in this case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which expanded the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. 29 C.F.R. § 1630.1(c)(4). Consistent with the ADAAA's purpose of reinstating a broad scope of protection under the ADA, the definition of "disability" shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. Id. The primary object of attention in cases brought under the ADA should be whether agencies have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. Id. The question of whether an individual meets the definition of disability should not demand extensive analysis. Id. Under EEOC regulations implementing the ADAAA, an individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g)(1). Major life activities include, but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. 29 C.F.R. § 1630.2(i)(1)(i). The term "substantially limits" shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. 29 C.F.R. § 1630.2(j)(1)(i). "Substantially limits" is not meant to be a demanding standard. Id. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. 29 C.F.R. § 1630.2(j)(1)(ii). An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Id. Upon review of the record, we find that Complainant is an individual with a disability because she has a physical impairment that substantially limits her in the major life activity of carrying. Specifically, medical documentation in the record reflects that Complainant, who has herniated neck discs, is unable to carry any type of shoulder bag, including the mail satchel. In addition, medical documentation in the record reflects that Complainant's condition is permanent/indefinite. II. Otherwise Qualified The term "qualified," with respect to an individual with a disability, means that the individual 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). Upon review of the record, we find that Complainant is otherwise qualified. Specifically, we note that the Agency conceded in the FAD that Complainant is otherwise qualified, i.e., she could perform the essential functions of her City Carrier position, with or without reasonable accommodation. Among other things, the FAD cited: (a) Complainant's affidavit testimony that she could perform all the duties of her position except carrying the satchel on her shoulder; (b) S1's affidavit testimony that, other than the October 26, 2011, medical documentation, Complainant did not have any restrictions or limitations in performing the duties of her position; and (c) P1's affidavit testimony that the position's qualifications and essential functions included having a valid driver's license and being able to lift up to 70 pounds. FAD, at 16-17. III. Reasonable Accommodation An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 29 C.F.R. § 1630.9. The term "reasonable accommodation" means modifications or adjustments to the work environment, or to the manner or circumstances under which the position held is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position. 29 C.F.R. § 1630.2(o)(1). When an individual decides to request accommodation, she must let the agency know that she needs an adjustment or change at work for a reason related to a medical condition. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (as revised Oct. 17, 2002) (Reasonable Accommodation Guidance). A health professional may request a reasonable accommodation on behalf of an individual with a disability. Id. at Question 2. It is a reasonable accommodation to modify a workplace policy when necessitated by an individual's disability-related limitations, absent undue hardship. Id. at Question 24. The term "undue hardship" means, with respect to the provision of an accommodation, significant difficulty or expense incurred by an agency. 29 C.F.R. § 1630.2(p)(1). Generalized conclusions will not suffice to support a claim of undue hardship; instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expenses. Reasonable Accommodation Guidance, Undue Hardship Issues. Upon review of the record, we find that the Agency denied Complainant a reasonable accommodation when it denied her request to not carry the mail satchel. First, we find that, on October 28, 2011, Complainant requested to not carry the satchel as a reasonable accommodation. Specifically, the record reflects that Complainant provided management with the October 26, 2011, medical documentation stating that she was unable to carry the satchel due to a neck injury. In addition, we find that Complainant providing management with the medical documentation constitutes a request for reasonable accommodation. Second, we find that the Agency, beginning on October 28, 2011, did not provide Complainant with the requested accommodation or with an alternative effective accommodation. Specifically, we find that, despite receiving Complainant's medical documentation stating that she was unable to carry the satchel, management did not modify Agency policy which requires a carrier to carry the satchel. In addition, we find that, despite Complainant offering alternative suggestions for reasonable accommodation (using a push cart, carrying the satchel on her arm, wearing the satchel around her hips), management insisted that she carry the satchel on her shoulder. Although management offered Complainant the alternative of carrying the empty satchel on her shoulder, we find that it was not an effective accommodation because she told management that she could not endure the pain of carrying an empty satchel and her medical documentation explicitly stated that she was unable to carry the satchel due to a neck injury. Third, we find that the Agency did not provide specific evidence proving that allowing Complainant to not carry the mail satchel on her shoulder would cause an undue hardship. Specifically, when asked by the EEO Investigator if Complainant's request would have created an undue hardship for the Agency in terms of cost or ability to accomplish the processing and delivery of mail, management simply responded, "No." ROI, at 180. In addition, the record reflects that Agency policy explicitly allows a carrier to use a double satchel, which could be worn in several configurations including with the waist belt and without the shoulder straps. Moreover, the record reflects that previous management had, from 1996 to 2011, allowed Complainant to deliver mail without carrying a satchel. Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Upon review of the record, we find that the Agency did not subject Complainant to disparate treatment based on disability when it issued her the 14-day suspension. Assuming, arguendo, that Complainant established a prima facie case on the alleged basis, we find that management articulated legitimate, nondiscriminatory reasons for suspending her; namely, on November 28, 2011, Complainant needed 8 hours and 21 minutes to deliver a route that should have only taken 5 hours and 20 minutes, and was delivering mail without wearing the satchel. Moreover, we find that Complainant did not prove, by a preponderance of the evidence, that management's reasons were pretextual. We emphasize that management had a reason, unrelated to the satchel issue, for suspending Complainant - her extension of street time that day. Complainant argued that it took her longer to deliver the route that day because she was unable to see the mail after she "lost the light" (which was well before the sunset time of 5 p.m.), she had to watch out for the decorations and electrical cords that were on the lawns due to the holiday season, and the mail was extremely heavy. ROI, at 123, 149-50. Although Complainant may have felt that her extension of street time that day was justified, we find that she did not show that management's decision to discipline her was motivated by her disability. CONCLUSION The Agency denied Complainant a reasonable accommodation when it denied her request to not carry the mail satchel. Because of the Agency's discriminatory action, Complainant, from October 28, 2011 through November 7, 2011, was not allowed to perform her street duties, was sent home after she completed her office duties, and was forced to take a combination of AL and LWOP for the hours she was sent home. The Agency did not subject Complainant to disparate treatment based on disability when it issued her a 14-day suspension. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission MODIFIES the Agency's FAD and REMANDS the matter to the Agency to take remedial action in accordance with this decision and the Order below. ORDER The Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision is issued: 1. The Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.). The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages. 2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount. Complainant may petition for clarification or enforcement of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. The Agency shall provide eight (8) hours of EEO training to S1 and P1 regarding their responsibilities under EEO laws, particularly reasonable accommodation. 4. The Agency shall consider taking appropriate disciplinary action against the S1 and P1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If S1 or P1 have left the Agency's employ, the Agency shall furnish documentation of their departure dates. POSTING ORDER (G1016) The Agency is ordered to post at its Hicksville Post Office in New York copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 _3/24/17_________________ 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 Complainant also alleged that the Agency discriminated against her: (a) on the basis of age in connection with the above issues; and (b) on the bases of disability and age in connection with a letter of warning and a 7-day suspension. The FAD found no discrimination regarding those issues. Because Complainant did not specifically challenge those issues on appeal, we exercise our discretion not to address them in our decision. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, § IV.A.3 (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal"). 3 On appeal, Complainant states that she has since retired. 4 On February 6, 2012, pursuant to a grievance decision, the Agency rescinded the 14-day suspension. ROI, at 142-43. Specifically, the grievance decision found that the suspension was flawed procedurally because management did not identify a concurring official. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150199 11 0120150199