U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Victor S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120160739 Hearing No. 451-2015-00038X Agency No. 4G-780-0085-14 DECISION On December 8, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 13, 2015, final decision2 concerning his 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 REVERSES the Agency’s final decision. ISSUES PRESENTED The issues presented are: (1) whether the preponderance of the evidence in the record establishes that Complainant was denied a reasonable accommodation; and (2) whether the preponderance of the evidence in the record establishes that Complainant was subjected to disparate treatment based on disability and/or reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full-time Mail Processing Clerk at the Agency’s Waco, Texas Processing and Distribution Facility (P&DF). Complainant stated that he has degenerative joint disease, a left rotator cuff tear, which means that he cannot carry heavy loads, a partially fused left wrist, and an inflexible right wrist that is in need of surgery. Complainant averred that he cannot walk on uneven surfaces or long distances because of ankle instability. According to Complainant, he could perform all of his Mail Processing Clerk duties without any accommodation. On August 6, 2013, Complainant was notified that the P&DF was closing and that effective September 7, 2013, he was being reassigned to the position of City Carrier at the Agency’s Belton, Texas Post Office. Complainant stated that on August 28, 2013, he submitted medical documentation to the Agency’s Occupational Health Nurse Administrator regarding his limitations with respect to the duties of the City Carrier position. According to Complainant, there was a District Reasonable Accommodation Committee (DRAC) meeting on September 3, 2013, to discuss Complainant’s medical restrictions. According to Complainant, as a result of the DRAC’s determination, he was assigned a “Dock Tech” position at the Waco P&DF. Complainant stated that he could perform the Dock Tech duties without accommodation. On November 15, 2013, the Waco Postmaster (S1) notified Complainant that effective November 30, 2013, he was being reassigned to the position of City Carrier at the Agency’s Highlander Station in Waco, Texas. Complainant stated that he immediately notified management that he could not perform the City Carrier duties and reminded them of the September 2013 DRAC determination. However, Complainant averred that he was told to report to Highlander Station. On December 5, 2013, there was a second DRAC meeting to discuss Complainant’s medical restrictions. On December 11, 2013, the Acting Manager of Highlander Station (S2) told Complainant to go home because there was no work available for him. According to Complainant, December 11, 2013, was his third day at Highlander Station, and he had been performing either Clerk work or waiting to speak with management while there. S2 stated that he told Complainant to go home because “[his] condition was not an on the job injury and there was not any work in the carrier craft that he could perform.” Report of Investigation (ROI) at 114. Complainant stated that after his leave ran out, he has taken extended leave without pay (LWOP). The DRAC again determined that Complainant could not perform the City Carrier position duties, with or without accommodation. On December 17, 2013, the District Labor Relations Manager (LR1) offered Complainant a Part-Time Flexible (PTF) Sales and Service Distribution Assistant position in Meridian, Texas, with variable hours between 6:30 a.m. and 10:30 a.m. and 2:30 p.m. and 4:30 p.m., Monday through Saturday, as a reasonable accommodation. According to Complainant, a PTF employee is only guaranteed two hours of work per day, and Meridian is about 48 miles from his home, so he could spend as much time driving as he would working per day. Complainant also alleged that accepting the Meridian position would have eliminated his retreat rights to return to the Clerk craft and to the Waco area and also would have eliminated his protections under the collective bargaining agreement. Complainant averred that a Waco P&DF Mail Processing Clerk (C1) who did not have a driver’s license remained in the Clerk craft after the P&DF closed because she did not have a driver’s license and was reassigned to a Clerk position at the Agency’s Downtown Station in Waco, Texas. LR1 stated that in order to be reassigned, an employee must meet the qualifications for the position and that C1 did not meet the City Carrier qualifications because she did not have a driver’s license. According to Complainant, C1 does not have a disability. The record does not establish whether C1 has a disability. The record indicates that C1 does not have any prior protected EEO activity. On February 4, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical) and reprisal for prior protected EEO activity (requesting a reasonable accommodation) when: 1. On November 30, 2013, he was placed into a Letter Carrier position outside of his medical restrictions; and 2. On December 11, 2013, he was told that there was no work available and sent home. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In its final decision, the Agency determined that Complainant established a prima facie case of disparate treatment based on reprisal and on disability. The Agency concluded that its legitimate, nondiscriminatory reason for reassigning Complainant to the City Carrier position at Highlander Station was the closure of the Waco P&DF and that its legitimate, nondiscriminatory reasons for sending Complainant home on December 11, 2013, were that there was no work available within Complainant’s restrictions and that Complainant’s condition was not work-related. The Agency determined that Complainant failed to establish that the Agency’s legitimate, nondiscriminatory reasons for its actions were pretextual. The Agency also found that Complainant failed to establish that he was denied a reasonable accommodation, noting that Complainant was offered the position to Meridian Post Office. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency has not established undue hardship with respect to removing his accommodation, the Dock Tech position. According to Complainant, the Agency demonstrated discriminatory and retaliatory animus when it reassigned him to a Letter Carrier position after the DRAC had determined in September 2013 that he could not perform the Letter Carrier position duties. Complainant notes that C1 was treated more favorably than he was. Complainant argues that the Agency impermissibly determined that it would not accommodate Complainant’s disability because it did not result from an on-the-job injury. Complainant maintains that the offer of a part-time position did not constitute a reasonable accommodation. In response to Complainant’s appeal, the Agency argues that the DRAC determined that Complainant could not be accommodated in the Letter Carrier position, searched for open and vacant positions in Complainant’s commuting area, and found the Meridian position, which Complainant did not accept. The Agency contends that C1 is not a proper comparator because she was not converted to the Letter Carrier craft because she did not have a driver’s license and the Agency could not force her to obtain one. The Agency notes that Complainant has a valid driver’s license. The Agency requests that its final decision be affirmed. ANALYSIS AND FINDINGS 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”). Reasonable Accommodation An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(c) and (p). “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). In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). In general, reassignment is the reasonable accommodation of last resort and should be considered only when (1) there are no effective accommodations that would enable an employee to perform the essential functions of his current position or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. pt. 1630 app. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, “Reassignment.” An agency should reassign the employee to a vacant position that is equivalent in terms of pay, status, and other related factors; if there are no vacant equivalent positions, then the agency should reassign the employee to a lower-level position that is closest to the current position. Id. The agency, however, may not use reassignment “to limit, segregate, or otherwise discriminate against employees with disabilities by forcing reassignments to undesirable positions or to designated offices or facilities.” 29 C.F.R. pt. 1630 app. § 1630.2(n); see also EEOC Enforcement Guidance: Workers, Compensation and the ADA, EEOC Notice No. 915.002, at Q. 21 (employer may not unilaterally reassign an employee with a disability-related occupational injury to a different position without first assessing whether the employee can perform the essential functions of his or her current position with or without reasonable accommodation). An agency is in the best position to know which jobs are vacant or will become vacant within a reasonable time and, as part of the interactive process, should ask the employee about his or her qualifications and interests. Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). Because it possesses the relevant information, an agency is obligated to inform an employee about vacant positions for which the employee may be eligible as a reassignment. Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997) (federal employers are far better placed than employees to investigate in good faith the availability of vacant positions); see also Enforcement Guidance on Reasonable Accommodation at Q. 28. The employee should assist the agency in identifying vacancies to the extent that the employee has information about them. Further, if the agency is unsure whether the employee is qualified for a particular position, the agency can discuss with the employee his qualifications. Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997) (once an employer has identified possible vacancies, an employee has a duty to identify which one he is capable of performing); see also Enforcement Guidance on Reasonable Accommodation at Q. 28. We emphasize that a federal agency's obligation under the Rehabilitation Act to offer reassignment is not limited to vacancies within a particular department, facility, or geographical area. Instead, the extent of the agency's search for a vacant position is an issue of undue hardship. Enforcement Guidance on Reasonable Accommodation at Q. 27. Accordingly, absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation. The Agency does not dispute that Complainant was a qualified individual with a disability. In November 2013, the Agency was aware of Complainant’s physical limitations and inability to perform the duties associated with the Letter Carrier position, yet it reassigned Complainant to a City Carrier position that he could not perform at Highlander Station. When Complainant reported to work at Highlander Station, he was sent home because there was no work available within his medical restrictions and because his disability was not related to an occupational injury.3 Complainant was subsequently offered the PTF position in Meridian as a reasonable accommodation. Here, we find that the Agency denied Complainant a reasonable accommodation when it involuntarily reassigned him to a position that he was unable to perform because of his medical restrictions in November 2013. Although the Waco P&DF was closing, the Agency has not shown that it would have constituted undue hardship to reassign Complainant to a position that he could perform with his known medical restrictions. Moreover, a position in the Clerk craft was located for C1 because she did not have a driver’s license, indicating that there was at least one Clerk craft position in Waco to which the Agency could have considered reassigning Complainant.4 Instead, the Agency reassigned Complainant to a City Carrier position that in September 2013 the DRAC had already determined that he could not perform. The Agency subsequently offered Complainant reassignment to the PTF position in Meridian. Our regulations do permit reassignment to a position with lower pay and/or a different status, but only after the consideration of whether there were equivalent vacant funded positions to which Complainant could have been reassigned. The Agency’s own reasonable accommodation guidelines advise that “[r]eassignments to vacant, equivalent positions should be considered first, then reassignments to a lower position.” ROI at 214. The Agency has made no such showing that it searched for equivalent vacant positions within Complainant’s medical restrictions here. Therefore, we find that the offer of a part-time position that was not equivalent to Complainant’s Clerk position in pay or status did not satisfy the Agency’s Rehabilitation Act obligations. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant established a prima facie case of discrimination with respect to his involuntary reassignment because he has a disability and prior protected activity and he was treated differently than his comparator, C1. We find that the Agency provided a legitimate, nondiscriminatory reason for reassigning Complainant in November 2013, which was that the Waco P&DF was closing. However, the Agency reassigned Complainant to a City Carrier position that it already knew he could not perform because of his disability. Therefore, we find that the Agency’s proffered reason for reassigning Complainant to a City Carrier position was pretext for disability discrimination. Although C1, who does not have prior protected activity, was not reassigned to the Carrier Craft when the P&DF was closing, there is insufficient evidence in the record to establish that the Agency’s provided legitimate, nondiscriminatory reason for not keeping Complainant in the Clerk craft was pretext for discrimination based on reprisal. Complainant also established a prima facie case of discrimination disability and reprisal with respect to his claim that he was sent home from work on December 11, 2013. The Agency’s reasons for sending Complainant home on December 11, 2013, were that there was no work available within his restrictions in the Carrier craft and that “[his] condition was not an on the job injury.” ROI at 114. Sending Complainant home because his impairment was not related to an on-the-job injury is not a legitimate, nondiscriminatory reason, as the Agency has obligations under the Rehabilitation Act independent of its obligations with respect to employees injured on the job. Moreover, S2’s statement that there was no work available within the Carrier craft implies that there may have been work available within Complainant’s restrictions in another craft. Accordingly, we find that Complainant has established that he was subjected to discrimination based on disability and reprisal when he was sent home and told that there was no work available on December 11, 2013. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s final decision finding no discrimination and REMAND the matter to the Agency for further processing in accordance with the below ORDER. ORDER The Agency is ordered to take the following remedial action: 1. The Agency shall immediately identify all vacant, funded positions or assignments with equivalent pay and status to Complainant’s full-time Mail Processing Clerk position and determine, with Complainant’s input and per the requirements of the Rehabilitation Act, which of these positions he is able to perform, with or without accommodation. If a vacant position is identified, Complainant shall be placed in the position. 2. The Agency shall immediately restore any leave used by Complainant due to the Agency’s failure to provide him with an effective reasonable accommodation as of December 11, 2013. 3. Within 90 calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation into Complainant’s entitlement to compensatory damages and determine the amount of compensatory damages to which Complainant is entitled. The Agency shall pay Complainant the determined amount of compensatory damages within 30 calendar days of the date of the determination. 4. Within 90 calendar days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive training to S1, S2, and LR1, with a particular emphasis on the Agency’s obligations under Section 501 the Rehabilitation Act. 5. Within 60 calendar days of the date this decision is issued, the Agency shall consider disciplining S1, S2, and LR1. 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 any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 6. Within 30 calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the paragraph entitled, “Posting Order.” The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Waco, Texas facilities 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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.  A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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).  All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission.  Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP).  See 29 C.F.R. § 1614.403(g).  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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 10-18-2017 __________________ 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 On July 9, 2015, the Agency erroneously issued a final decision giving Complainant appeal rights to the Merit Systems Protection Board. On November 13, 2015, the Agency reissued its final decision with the correct appeal rights. 3 We note that whether Complainant’s disability was related to an on-the-job injury is irrelevant in the reasonable accommodation context. If an employer reserves light duty positions for employees with occupational injuries, the Rehabilitation Act requires it to consider assigning an employee with a disability who is not occupationally injured to such positions as a reasonable accommodation. The employer cannot establish undue hardship by asserting it needs to reserve its light duty for employees approved by workers' compensation. See EEOC Enforcement Guidance: Workers' Compensation and the ADA, EEOC Notice No. 915.002 (September 3, 1996), Question 28. 4 The Agency contends that it could not force C1 to obtain a driver’s license. However, this does not relieve the Agency of its Rehabilitation Act obligations with respect to Complainant. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160739 2 0120160739