Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (New York Metro Area), Agency.

Equal Employment Opportunity Commission

Apr 22, 2015

01-2013-3344-0500 (E.E.O.C. Apr. 22, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.

Appeal No. 0120133344

Hearing No. 520-2010-00085X

Agency No. 4B060005309

DECISION
On September 17, 2013, Complainant filed an appeal from the Agency’s August 15, 2013 final
order concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked at the Agency's
Hamden, Connecticut Station. Beginning in 2003, Complainant occupied a modified Letter
Carrier position with certain medical restrictions approved by the Department of Labor’s
Office of Workers’ Compensation Programs (OWCP), including a daily limit of six hours of
work with no work requiring fine manipulation. However, in March 2008, Complainant’s
physician updated an OWCP CA-17 Form, increasing Complainant’s work capacity to an
eight-hour day, with six hours of fine manipulation and two hours of twisting. Based upon this
updated medical documentation and with OWCP’s approval, the Agency proposed
modifications to Complainant’s assignment, increasing his daily hours and requiring him to
perform some repetitive motion. Complainant rejected the proposed new assignment. In
response, OWCP informed Complainant that his wage compensation benefit was being
terminated. In addition, the Agency notified Complainant not to report to work and ultimately,
on February 10, 2009, terminated Complainant for refusing to accept the modified job offer.
0120133344

2

On May 7, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of religion (Jewish), disability, and in reprisal for prior protected
EEO activity when the Agency issued him a notice termination from employment.1

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.
The AJ held a hearing on April 15, and July 14, 2011, and issued a decision on October 1,
2012. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

ANALYSIS AND FINDINGS
Denial of Reasonable Accommodation

Complainant asserts that the Agency improperly altered his modified position in a way that
denied him a reasonable accommodation in violation of the Rehabilitation Act. 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). An individual must be able to
perform the essential functions of a position with or without a reasonable accommodation in
order to be a qualified individual with a disability. 29 C.F.R. § 1630.2(m). The Commission
has long held that an agency is not required to create a position or transform temporary light or
limited duty assignments into permanent jobs to accommodate a disability. Mengine v.
Runyon, 114 F. 3d 415, 418 (3rd Cir. 1997); see also Woodard v. U.S. Postal Serv.

, EEOC
Appeal No. 01A21682 (July 29, 2003).
We conclude that the Agency did not improperly deny Complainant reasonable accommodation
because Complainant was not a qualified individual with a disability within the meaning of the
Rehabilitation Act. This is so because Complainant was unable to perform the essential

1 The complaint as originally filed included other allegations later abandoned by Complainant
which we will not address.

0120133344

3
functions of his Letter Carrier position with or without reasonable accommodation,
Complainant refused to accept the modified position he was offered, and there was no evidence
that there was a vacant, funded position for which Complainant was qualified and to which he
could have been reassigned. See Saul v. U.S. Postal Serv., EEOC Appeal No. 01970693 (May
10, 2001)(“make work” assignment not a vacant, funded position).2

Disparate Treatment Discrimination

To prevail in a disparate treatment claim, 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 where 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). 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).
Here, the Agency explains that Complainant’s employment was terminated because he declined
to accept an OWCP approved job offer, and there were no other positions available within
Complainant’s medical restrictions. The AJ found that this was an “indisputable”
nondiscriminatory reason for the Agency’s actions. We agree that this is a legitimate,
nondiscriminatory reason for the Agency’s action. Complainant speculates that he was
removed from his position because he was Jewish, citing as evidence the fact that he was the
only Jewish employee in the facility. Complainant’s status as the only member of his protected
group within the relevant group of employees goes to the question of whether he has proven a
prima facie case of discrimination. It does not address the final issue under the three-part
McDonnell Douglas analysis, i.e

. whether the Agency’s reason for terminating Complainant’s
employment was true. There is no evidence to suggest that the Agency’s reason is untrue or a
pretext designed to conceal discriminatory or retaliatory animus. Accordingly, Complainant’s
claim of disparate treatment discrimination fails.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

2 The record indicates that Complainant also initiated proceedings with OWCP concerning this
matter. To the extent that Complainant is contending that the modified position he was offered
violates his rights under the Federal Employees Compensation Act in that it was inconsistent
with his medical restrictions, the remedy lies with OWCP and not with the Commission.
0120133344

4

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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

(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.

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RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
April 22, 2015