Gomez v. United States Postal Service

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 20-11861-RGS

DARWIN GOMEZ

v.

LOUIS DEJOY, POSTMASTER GENERAL OF THE UNITED STATES

POSTAL SERVICE

MEMORANDUM AND ORDER

ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

November 29, 2021

STEARNS, D.J.

Plaintiff Darwin Gomez brought this action against Louis DeJoy, the

Postmaster General of the United States, alleging that the United States

Postal Service discriminated against him based on disability and national

origin when it rejected his applications to become a postal employee.

Gomez asserts three counts against Postmaster DeJoy: handicap

discrimination (Count I) and failure to accommodate (Count II) under the

Rehabilitation Act, 29 U.S.C. § 794; and national origin discrimination

(Count III) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq. Postmaster DeJoy moves for summary judgment on all three counts.

For the following reasons, the court will allow the motion.

BACKGROUND

In late 2018, Gomez began his quest for employment with the Postal

Service. Historically, the Postal Service offered alternative channels for the

hiring of new carriers and clerks with disabilities. The first, which is still

used by the Postal Service, is a competitive process that requires all

applicants to submit an online application. Any apparently qualified

applicant is sent a link to a non-proctored Virtual Entry Assessment (VEA),

the April 1, 2019 successor to the previous the two-part Battery 473

examination.1 An accommodations version of the postal exam is made

available to applicants with qualified disabilities. Applicants who pass the

exam are placed on a register of eligible external hires. A disabled

candidate is then invited to participate in an interactive interview to

determine the reasonable accommodations the Postal Service could

implement if it offered the applicant a job.

A second, noncompetitive hiring process, which is no longer in effect,

involved collaboration between the Postal Service and state divisions of

vocational rehabilitation (DVR) or veterans’ affairs (VA) organizations.2

1 The court refers to both exams as the “postal exam.”

2 Although the Postal Service has not hired through the

noncompetitive process in at least ten years, the Postal Service’s Handbook

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Any DVR or VA organization that wished to participate in the

noncompetitive process was required to submit a certification package. If

approved, these organizations and agencies identified potential applicants to

the Postal Service. If a postal position became available, the Postal Service

would request that the recommending agency certify at least three names for

the Postal Service’s consideration after conducting a worksite evaluation.

Gomez was born in Colombia and migrated to the United States

approximately a decade ago. He has longstanding diagnoses of epilepsy,

anxiety, depression, and a cognitive disorder that affect his ability to retain

employment. In June of 2011, Au Bon Pain, a bakery chain, hired Gomez to

work as a guest services representative at one of its Boston, Massachusetts

locations. Au Bon Pain dismissed Gomez in March of 2012, after he missed

work following a series of seizures. In November of 2016, Gomez began

working as a food delivery driver for Grubhub Holdings, Inc. In 2018, he

left Grubhub and began driving for rideshare companies Uber Technologies,

Inc. and Lyft, Inc. Gomez stopped driving for Uber and Lyft upon the onset

EL-312, Employment and Placement, still describes the noncompetitive

hiring process and states that it may be available to individuals with severe

disabilities for whom “the competitive process is itself a barrier to

employment” and who “would be able to perform at the normal standards of

job performance.” Tayler Aff. Ex. 14 (Dkt # 18-14) at 60.

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of the COVID-19 pandemic.

On October 15, 2018, Gomez emailed Postal Service employee Nicolas

Francescucci inquiring about employment as a postal worker. In his email,

Gomez asked how he could qualify for “a Noncompetitive selection.” Taylor

Aff. Ex. 6 (Dkt. # 18-6) at 8. Postal Service Learning, Development, and

Diversity Specialist Carmen Filleti reached out to Gomez by return email on

January 11, 2019. She explained that her job was to assist persons seeking

employment with the Postal Service. Filleti asked Gomez for his telephone

number and whether he intended to take the postal exam. Gomez replied

that he needed “to request and [sic] accommodation in the hiring process,”

and asked Filleti “what documents [he] should submit to obtain a

noncompetitive selection.” Id. at 15. Filleti forwarded Gomez’s email to

Donna Pratt, the Manager of Human Resources in the Postal Service’s

Greater Boston District, who contacted Postal Service employee Angela

Corbett regarding Gomez’s request. Corbett informed Pratt that Filetti was

the proper person to assist Gomez in navigating the application process.

In an email dated February 12, 2019, Pratt advised Gomez to submit a

formal application indicating that he required an accommodation. The

Postal Service assigned employee Mario Lucas to guide Gomez after he

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applied for the position of City Carrier Assistant in Brockton, Massachusetts.

Gomez, however, did not take the postal exam, and, on February 19, 2019,

the Postal Service notified him that he would not be considered for the City

Carrier Assistant position. It further informed Gomez that he could apply

for a different vacancy after June 16, 2019.

Undeterred, Gomez continued his pursuit of immediate employment

with the Postal Service. On February 22, 2019, he presented Lucas with two

letters from his psychiatrist: one dated October 17, 2018, certifying that he

suffers from conditions that affect his ability to perform on a test, and

another stating that he “suffers from medical conditions that create

significant anxiety in the context of a job interview” and “would benefit from

the interview being conducted in Spanish and from being given increased

time for answering questions during the interview.” Taylor Aff. Ex. 24 (Dkt.

# 18-24) at 2–3. That same day, Gomez, with Lucas’s assistance, applied

for a clerk’s position at post offices in North Easton and Abington,

Massachusetts. On February 23, 2019, the Postal Service notified Gomez

that he did not meet the “eligibility or suitability requirements” for either of

these positions. Taylor Aff. Ex. 3 (Dkt. # 18-3) at 41–42.

On March 20, 2019, Gomez emailed Human Resources Manager

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Pratt asking how, despite his being deemed ineligible for the positions he had

sought, he could nonetheless continue with the application process. Pratt

sought guidance from others in the Postal Service’s Human Resources

Department as to whether Gomez could be considered as a new hire without

first completing the postal exam. On March 27, 2019, Gomez followed up

with Pratt about continuing with the hiring process, stating his belief that he

was “exempt from taking the test.” Taylor Aff. Ex. 31 (Dkt. # 18-31) at 3.

On April 4, 2019, Pratt informed Gomez that his application had been

rejected “as you did not complete the test.” Id. at 1. Nonetheless, Pratt

told Gomez that she had asked her staff to continue providing him with

assistance, and offered to schedule a meeting for Gomez with the Boston

District’s Reasonable Accommodation Committee. She stated that she

understood his request to be exempted from taking the postal exam as a

request to be hired noncompetitively, and continued:

We mostly hire employees with disabilities from a competitive

hiring register. We only hire non-competitively when the

individual has been referred (via PS Form 3666 [linked]) by a

certified state DVR or VA organization that we’ve granted

authority to identify and screen applicants. Are you working

with a State Disability Agency? If so, they must complete the

attached form on your request.

Id. Gomez replied that he would work with a State Disability Agency to

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complete the Form 3666.

On April 8, 2019, Pratt followed up with Gomez providing a further

clarification of the hiring process. She offered a lengthy overview of the

noncompetitive hiring process, explaining that the process began with a DVR

or VA organization seeking certification “before a hiring need exists.”

Taylor Aff. Ex. 3 (Dkt. # 18-3) at 36. After explaining the DVR and VA

organizations’ roles in the noncompetitive process and how the Postal

Service chose from the candidates they identified, she added:

As you can clearly see, the non-competitive process is involved

and strictly regimented. Much needs to have happened prior to

an agency referring you to the Postal Service for your

consideration in a vacancy. Now, if we were to consider you

competitively with the understanding that you require

reasonable accommodation, that process would be less involved

and streamlined. We would still require that you participate in

an interactive interview to confirm the essential functions of the

job, your abilities and your limitations before any offer of a job

. . . . If you still wish to accept my suggestion and competitively

pursue employment with the Postal Service, we would be happy

to schedule the interactive interview and meet with you. Please

respond in writing to my address below at your earliest

convenience.

Id.

On May 2, 2019, Gomez replied to Pratt’s April 4 email and April 8

letter. He asked “to schedule an interactive interview where we can meet

and further discuss the hiring process with reasonable accommodations.”

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Balakrishna Aff. Ex. 4 (Dkt. # 17-4) at 1. He added that he was working with

a rehabilitation counselor named Mary Ramos in the Massachusetts

Rehabilitation Commission’s Brockton office. On June 12, 2019, Ramos

emailed Pratt a completed Form 3666, Certification of Postal Service

Employment of Individuals with Severe Disabilities, which stated that

Ramos had “reviewed both the job requirements and the job site” for a Postal

Service position in Brockton, Massachusetts. She certified that Gomez was

qualified for the position and could meet or exceed the normal job

performance standards but was “unable to successfully compete in the Postal

Service competitive process because of the nature or severity of [his]

disability.” Taylor Aff., Ex. 36 (Dkt. # 18-36) at 2. Pratt, who was then on

medical leave, forwarded Ramos’s email and follow-up emails from Gomez

to Learning, Development, and Diversity Specialist Filleti. On June 25,

2019, Filleti informed Connie Marvin, the USPS Manager of Labor Relations,

that Pratt had been working with Gomez and that he was requesting an

exemption from the examination requirement.

On August 1, 2019, Marvin sent Gomez a letter advising him to pursue

employment with the Postal Service through the competitive process. She

told Gomez that “[t]he Postal Service currently does not hire non-

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competitively for any position,” and that the secti0n of the Postal Service’s

Employment and Placement handbook on noncompetitive hiring was

obsolete. Taylor Aff. Ex. 3 (Dkt. #18-3) at 37. Marvin then explained that

the competitive application process was more streamlined and, while it

would require Gomez to take the postal exam, he could “access an

accommodation version of the assessment.” Id. She added that if Gomez

were eligible, the Postal Service would schedule him for an interactive

interview to determine reasonable accommodations. She concluded, “[i]f

you still wish to pursue employment with the Postal Service, we would be

happy to schedule the interactive interview and meet with you. Please

respond in writing to my address below at your earliest convenience.” Id.

Marvin did not receive a reply.

Gomez contacted the Postal Service’s Equal Employment Opportunity

(EEO) Office on August 12, 2019, and filed an EEO complaint on November

22, 2019, alleging disability and national origin discrimination. On July 20,

2020, the EEO issued a final decision on Gomez’s claims, finding that the

Postal Service had not taken any discriminatory actions against Gomez.

Gomez filed this Complaint on October 15, 2020.

DISCUSSION

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“Summary judgment is warranted if the record, construed in the light

most flattering to the nonmovant, presents no genuine issue as to any

material fact and reflects the movant’s entitlement to judgment as a matter

of law.” Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 20–21 (1st

Cir. 2018); see also Fed. R. Civ. P. 56(a). An issue of material fact is genuine

if a rational factfinder could resolve it in favor of either party. See Boudreau

v. Lussier, 901 F.3d 65, 71 (1st Cir. 2018). “To succeed, the moving party

must show that there is an absence of evidence to support the nonmoving

party’s position.” Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990). Once

accomplished, the burden then shifts to the nonmoving party to “adduce

specific, provable facts demonstrating that there is a triable issue.”3 Id.

a. Count I: Handicap Discrimination

Gomez claims in Count I that he was “denied employment due to his

disability and his requested accommodations as a result of said disability.”

Compl. ¶ 24 (Dkt. #1). The parties focus almost their entire briefing on

Gomez’s allegation that the Postal Service failed to provide him with a

3 The parties are in almost complete agreement regarding the material

facts of this case. Gomez admits the substance of all but one paragraph of

Postmaster DeJoy’s Statement of Material Facts and submits a two-

paragraph Statement of Material Facts of his own — which Postmaster DeJoy

also does not substantively contest — stating that he is disabled and receives

treatment for his disabilities.

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reasonable accommodation, which Gomez more fully asserts in Count II of

the Complaint. Nonetheless, Gomez appears in Count I to raise a separate

claim that the Postal Service failed to hire him as a matter of disability

discrimination. The court considers the discrimination claim as the

substantive claim of Count I and grants summary judgment to Postmaster

DeJoy.

To make out a prima facie case of disability discrimination, Gomez

must show: (1) that he was disabled within the meaning of the Rehabilitation

Act; (2) that he was qualified to perform the essential functions of the jobs to

which he applied, either with or without a reasonable accommodation; and

(3) that the Postal Service took an adverse action against him (in this case,

by failing to hire him) because of his disability. See Rios-Jimenez v.

Principi, 520 F.3d 31, 41 (1st Cir. 2008). If Gomez makes this preliminary

showing, the burden shifts to Postmaster DeJoy to articulate a legitimate,

non-discriminatory reason for the decision not to hire Gomez, and must

produce credible evidence supporting that reason. See Freadman v. Metro.

Prop. & Cas. Ins. Co., 484 F.3d 91, 99 (1st Cir. 2007); see also McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If Postmaster DeJoy

meets his burden of production, the burden shifts back to Gomez to establish

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“that the proffered reason is pretext intended to conceal discriminatory

intent.” Rios-Jimenez, 520 F.3d at 41.

Gomez has failed to meet the low threshold requirement of establishing

a prima facie case of handicap discrimination, for the simple reason that

there is no triable issue as to whether he was able to perform the essential

functions of a postal carrier or clerk. To show that Gomez was not qualified

to perform the essential functions of these positions, Postmaster DeJoy must

prove that the job functions at issue are essential. See Lang v. Wal-Mart

Stores East, L.P., 813 F.3d 447, 454 (1st Cir. 2016). An essential function is

any “fundamental” job duty rather than a “marginal” task. Kvorjak v.

Maine, 259 F.3d 48, 55 (1st Cir. 2001). Once the essential job functions are

established, Gomez bears the burden of showing that he possesses “the

requisite skill, experience, education and other job-related requirements for

the position,” and that he is “able to perform the essential functions of the

position with or without reasonable accommodation.” Mulloy v. Acushnet

Co., 460 F.3d 141, 147 (1st Cir. 2006).

Whether a job function is essential is ordinarily (but not always) a jury

question to be decided by considering federal guidelines giving weight to the

employer’s judgment, the written job description, the amount of time spent

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performing the function, the consequences if the function is not performed,

the terms of any collective bargaining agreement, and what other past and

present employees have done performing the same job. Labonte v.

Hutchins & Wheeler, 424 Mass. 813, 823 n.13 (1997) (adopting federal

guidelines). Here, Gomez does not contest the fact that he cannot meet the

essential functions of a postal carrier or clerk position without an

accommodation and, more important, as is explained, he did not meet the

threshold qualification of successfully completing the postal exam. Gomez

admits that he did not successfully complete the exam, but instead seeks to

be excused from taking the exam even though he did not avail himself of the

accommodations version of the exam. Under these circumstances, no

reasonable jury could find that Gomez meets even the first of the essential

requirements to qualify as a carrier or clerk. Gomez has thus failed to make

a prima facie showing that he was qualified to perform the essential

functions of the carrier and clerk positions.

b. Count II: Failure to Accommodate

Gomez alleges that the Postal Service discriminated against him in the

hiring process when it refused to waive the exam requirement or hire him

noncompetitively. To assert a failure to accommodate claim, Gomez must

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establish: (1) that he suffered from a disability; (2) that he was a qualified to

perform the essential functions of those positions for which he applied,

either with or without a reasonable accommodation; and (3) that, despite its

knowledge of Gomez’s disability, the Postal Service did not offer a reasonable

accommodation. See Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 20

(1st Cir. 2004).

A plaintiff bears the burden of showing that “(1) the proposed

accommodation would enable [him] to perform the essential functions of

[his] job, but also that, (2) at least on the face of things, it is feasible for the

employer [to offer the accommodation] under the circumstances.”

Echevarría v. AstraZeneca Pharm. LP, 856 F.3d 119, 127 (1st Cir. 2017).

The reasonable accommodation requirement does not mandate that an

employer “automatically give [an applicant] the position,” Feliciano v. State

of R.I., 160 F.3d 780, 787 (1st Cir. 1998), nor does it compel an employer to

“give an employee [his] preferred accommodation,” Oquendo v. Costco

Wholesale Corp., 857 F. App’x 9, 12 (1st Cir. 2021). An employer is not

required to “create a new job for an employee, nor to re-establish a position

that no longer exists.” Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (1st

Cir. 2001). The First Circuit has expressly held that the Postal Service need

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not satisfy a request for an accommodation that would violate the rights of

other employees under an existing collective bargaining agreement (CBA).

See Shea v. Tisch, 870 F.2d 786, 790 (1st Cir. 1989).

Gomez’s request to be hired noncompetitively and be exempted from

completing the postal exam is not facially reasonable. Gomez does not

dispute that, at the time of his applications, the Postal Service was only hiring

for external bargaining unit positions through a competitive process that

required each applicant to take the postal exam; rather, he argues only that

the Postal Service failed to apprise him of this fact. See Combined

Statement of Material Facts (Dkt. #33) ¶¶ 11–13. It is true that the Postal

Service did not expressly foreclose the possibility that Gomez could be hired

noncompetitively until Manager of Labor Relations Marvin’s August 1, 2019

letter. However, Human Resources Manager Pratt’s communications of

April 4 and April 8, 2019, informed Gomez that the Postal Service hired

employees with disabilities competitively, that the competitive process was

less involved and more streamlined than the noncompetitive process, and

that the Postal Service was willing to engage in an interactive dialogue with

Gomez to determine what reasonable accommodations he would need to

pursue employment competitively. Further, Gomez does not point to any

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authority suggesting that his preferred accommodations (not taking the

exam and being hired noncompetitively) are facially reasonable merely

because the Postal Service did not immediately reject them.

Moreover, noncompetitive hiring is not a facially reasonable

accommodation where, as here, it would violate the Postal Service’s CBAs.

See Marvin Decl. ¶ 7. Gomez does not dispute the Postal Service’s

contention that the hiring of any external applicant into a career position as

a postal worker is a CBA violation. See Combined Statement of Material

Facts ¶ 6; see also Shea, 870 F.2d at 789 (the court “must take it as

established that to provide plaintiff with the accommodation plaintiff seeks

. . . . would violate the collective bargaining agreement” and was therefore

not a reasonable request).

c. Count III: National Origin Discrimination

Gomez submits no facts and makes no legal arguments in support of

his national origin discrimination claim. To make out a prima facie case of

national origin discrimination, Gomez must show: (1) that he is a member of

a protected class; (2) that he applied for and was qualified for the positions

at issue; (3) that the Postal Service rejected his application; and (4) that the

Postal Service hired someone with similar or lesser qualifications. See

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Moron-Barradas v. Dep’t of Educ. of Commonwealth of Puerto Rico, 488

F.3d 472, 478 (1st Cir. 2007). Postmaster DeJoy contends that Gomez has

failed to establish the second and fourth elements of a prima facie case.

The court agrees that Gomez was not qualified and that he has not shown

that the Postal Service hired someone with similar or lesser qualifications

than himself (ultimately for a discriminatory reason based on Gomez’s

national origin). Indeed, Gomez has submitted no evidence from which the

court could determine the ethnicity or origins of who, if anyone, was hired in

his stead for the positions for which he applied.

ORDER

For the foregoing reasons, the motion for summary judgment is

ALLOWED in its entirety. The Clerk will enter judgment for Postmaster

DeJoy on all claims and close the case.

SO ORDERED.

/s/ Richard G. Stearns

UNITED STATES DISTRICT JUDGE

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