EEOC Appeal 2020001683

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Waneta F.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2020001683
Hearing No. 450-2019-00014X
Agency No. 4G-780-0072-18
DECISION
On January 8, 2020, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 5, 2019 final order concerning an equal employment opportunity (EEO) complaint
claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-1 at
the Agency’s Killeen Post Office facility in Killeen, Texas.
On June 15, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of disability (left shoulder) and reprisal for prior protected EEO activity
when:
1. Beginning on or about November 20, 2017, through March 15, 2018, her request for
accommodation was not granted; and
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.

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2. Beginning on or about November 20, 2017, through March 15, 2018, she was not
compensated with Continuation of Pay (COP).
The Agency partially dismissed claim 2 for failure to state a claim, reasoning it was a collateral
attack on the workers’ compensation adjudicatory process. The Agency, however, accepted claim
1 for investigation and further processing.
At the conclusion of the investigation of claim 1, the Agency provided Complainant with a copy
of the report of investigation and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested
a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s
September 13, 2019, motion for a decision without a hearing and issued a decision by summary
judgment in favor on the Agency on November 26, 2019. 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. This appeal followed.
ANALYSIS AND FINDINGS
Partial Dismissal – Claim 2
As an initial matter, in a partial dismissal decision dated July 2, 2018, the Agency dismissed claim
2 of the complaint for failure to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1)
provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An
employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v.
U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal
Service, EEOC Request No. 05930106 (June 24, 1993).
COP is a benefit determined by the Office of Workers’ Compensation Programs in response to a
workers’ compensation claim. The proper forum for Complainant to have raised her concern about
not receiving COP is within the OWCP process itself. The Agency properly dismissed claim 2 for
failure to state a claim.
Summary Judgment – Claim 1
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249.

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The evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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.
To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. While Complainant
has, in a very general sense, asserted that facts are in dispute, she has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that indicates
such a dispute.
We have long recognized that the party opposing summary judgment must do more than merely
recite facts or rest on his pleadings to demonstrate that a genuine dispute of material fact exists.
James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). “[T]he mere existence
of some alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247. Accordingly, the party opposing summary judgment must set forth
specific facts showing that there is a genuine issue for trial. Id. at 250. We have also recognized
that not every factual dispute qualifies as a genuine issue that will prevent summary judgment.
Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant
v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Because Complainant’s
rebuttal of the Agency’s explanations for its actions are unsupported we find that he has not shown
the presence of a material issue of fact.
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears
the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S.
502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether complainant has shown by a preponderance of the evidence that the

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agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep't of Transportation, EEOC Request No.
05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No.
05900467 (June 8. 1990): Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May
31, 1990).
The evidence reflects that following an on-the-job injury to her left shoulder, Complainant was
permitted to return to work with several temporary restrictions, including lifting no more than five
pounds, sitting for no more than six hours per day, standing for no more than one hour per day,
and no more than one hour of walking per day. The record indicates that the Agency considered
Complainant’s medical restrictions and granted Complainant’s request for an accommodation on
March 8, 2018, by giving her a modified job assignment with duties within her medical restrictions.
Complainant acknowledges that the Agency provided her a modified job offer, however she
contends that she should have been accommodated earlier. The record indicates that the
responsible Agency officials learned of Complainant’s medical restrictions for the first time on
February 15, 2018. The record does not support Complainant’s contention that the Agency failed
to provide a reasonable accommodation prior to learning of her medical restrictions. There is no
evidence in the record that the Agency failed to engage in the interactive process or otherwise deny
Complainant an accommodation in a timely manner.
We agree with the AJ that Complainant failed to rebut the Agency's legitimate, nondiscriminatory
reasons for its conduct or that Complainant has demonstrated that there are genuine issues of
material fact in dispute in this case. Based on the foregoing, we find that Complainant failed to
show that the Agency's action was motivated by discrimination as she alleged.
CONCLUSION
Based on our thorough review of the record and the contentions on appeal, the Agency’s final
order, implementing the AJ’s decision without a hearing, finding no discrimination, is AFFIRMED
for the reasons discussed above.
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.

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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 (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.

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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
May 21, 2020
Date