EEOC Appeal 2020001799

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chuck C.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 2020001799
Hearing No. 470-2019-00312X
Agency No. 4J-460-0086-18
DECISION
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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant initially worked as a non-career Rural Carrier Associate
at the Clermont Branch in Indianapolis, Indiana. 	However, Complainant sustained a work-
related injury on January 16, 2016. This injury resulted in him being placed, on March 6, 2017,
in a limited duty position as Lobby Assistant at the Agency’s Nora Post Office in Indianapolis,
Indiana.
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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On December 19, 2018, Complainant filed a formal EEO complaint claiming that that the
Agency discriminated against him based on disability (displaced condyle on right lower leg)
when, on September 19, 2018, Complainant was not converted to a Regular Rural Carrier
position.
After the investigation of the claim, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge or a final decision within thirty days of receipt of the correspondence. Complainant timely
requested an AJ hearing and the Agency filed a motion for summary judgment.
On August 14, 2019, the AJ held a hearing/conference (that was transcribed) in which he heard
from the Agency representative, Complainant’s non-legal representative, and Complainant.
Through questioning, the AJ clarified that Complainant had not alleged in the instant complaint
that he either needed or was denied a reasonable accommodation. 	Therefore, the AJ indicated
that Complainant failed to establish a prima facie case for unlawful discrimination based on
disability. Specifically, the AJ indicated that while the record reflected that Complainant was an
individual with a disability, Complainant could not perform the essential functions of the RCA
position and Complainant did not provide evidence of similarly situated individuals who were
converted to an RCA position. Therefore, the AJ indicated he would adopt the Agency’s motion
for summary judgment with a finding of no discrimination.
On November 20, 2019, the AJ issued a brief decision summarily adopting his reasons for
finding no discrimination as outlined in the transcript of the August 14, 2019 proceeding.
On December 5, 2019, the Agency issued a final order adopting the AJ’s finding of no
discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
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. Here, Complainant
has failed to point with any specificity to particular evidence in the investigative file or other
evidence of record that indicates such a dispute. For the reasons discussed below, we find that,
even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in his favor.

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Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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 Department of
Community 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 agency’s actions were motivated by discrimination. 	See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The AJ’s analysis was confined exclusively to a determination that Complainant did not establish
a prima facie case of disparate treatment based on her raised bases. Our review of the record
indicates that the Agency also provided legitimate non-discriminatory reasons for not converting
Complainant to the Regular Rural Carrier position its actions, even though the AJ did not
expressly address this analysis.
The record reflects that Complainant sustained a work-related injury on January 16, 2016, and
fractured his left knee while working as an RCA. Consequently, Complainant filed a claim with
the Department of Labor’s Office of Workers’ Compensation (“OWCP”) which was accepted in
February 2016. 	The record further reflects that Complainant returned to work as an RCA on
October 31, 2016, but he was unable to complete a full work day due to pain and discomfort.
A copy of Complainant’s RCA job description indicates, in pertinent part, that an RCA is
responsible for delivering mail to customers along a prescribed route on a regular schedule by
vehicle, collecting monies and receipts for accountable mail, and picking up mail from
customers’ roadside boxes.
On November 2, 2016, Complainant’s physician determined that Complainant could return to
work, but he had a permanent work restriction that prevented him from driving postal vehicles.

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The Agency then offered, and Complainant accepted, a limited duty assignment at the Nora Post
Office as a Lobby Assistant, effective March 6, 2017. 	Complainant reported to work on March
7, 2017 and the Agency notified OWCP that Complainant had returned to full-time limited work
duty.
Thereafter, the OWCP’s physician re-evaluated Complainant on March 6, 2017, determined that
Complainant’s restriction was permanent, and directed the Agency on July 3, 2018 to provide
Complainant with a permanent light duty assignment. 	Because Complainant’s restriction was
permanent, the Agency notified Complainant by letter dated October 5, 2018, that his permanent
work restrictions including, among others, no operation of a motor vehicle at work, thereby
preventing him from performing the essential duties of an RCA. The letter further informed
Complainant that the work he was performing at the Nora Post Office was now his permanent
limited duty position. Finally, the letter explained that there was no there was no limited duty
work within Complainant’s restrictions available at the Clermont Post Office (the branch where
he originally worked).
The record reflects that the Agency posted a bid for a regular rural carrier position from August
30, 2018 through September 8, 2018. A copy of the bid states:
If the rural carrier is temporarily unable to perform the duties of any bid-for
position, the carrier must have on file or submit, prior to the award of the position,
medical certification indicating that the carrier will be able to fully perform the
duties of the bid-for position in order to have the position held in abeyance.
However, the Operations Program Support Specialist testified that there was no record that
Complainant submitted a bid for the regular rural carrier position at issue.
Nevertheless, the record further reflected that Complainant’s permanent work restriction, in
conjunction with the terms of the union agreement, rendered him ineligible for the Regular Rural
Carrier position. A copy of the union agreement states, “[i]n the rural carrier craft, at any local
installation, regular rural routes shall not be considered for any light duty assignment.”
Additionally, the union agreement further provides guidance for employees who are “temporarily
unable to perform all of the duties of a rural carrier assignment” (emphasis added). In pertinent
part, the union agreement states that:
RCAs who are temporarily unable to fully perform the duties of a bid-for regular
rural carrier position or a Part-time Flexible Rural Carrier position will be allowed
to bid for the rural carrier assignment . . . provided the employee will be able to
perform the duties of the bid-for position within six (6) months from the time the
bids is awarded.
Here, Complainant would not have qualified for this position because he could only perform
some, but not all, the essential functions of the rural carrier position. Specifically, Complainant
could not operate a postal vehicle.

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Additionally, the record reflected that Complainant’s driving restriction, an essential function for
the rural carrier position, was a permanent one, and therefore, Complainant would not have been
able to perform this function within the six-month grace period.
After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons 	for 	the 	disputed 	actions 	were 	a 	pretext 	for 	unlawful 	discrimination 	based 	on
Complainant’s disability.
Reasonable Accommodation
We note that the AJ specifically indicated that Complainant did not request a reasonable
accommodation. 	Nevertheless, we clarify that the record supports that Complainant was not a
qualified individual within the meaning of the Rehabilitation Act. A qualified person with a
disability is an individual who can perform the essential functions of the position with or without
an 	accommodation. 	As 	previously 	discussed, 	Complainant’s 	permanent 	work 	restrictions
prevented him from performing an essential function of the RCA position (driving) and there is
no evidence that there was a reasonable accommodation that would have allowed him to perform
that function. Therefore, the record does not support that the Agency violated the Rehabilitation
Act when it did not convert Complainant to the Regular Rural Carrier position.
Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision.
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).

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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
September 14, 2020
Date