King W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 20, 2019

2019001070 (E.E.O.C. Mar. 20, 2019)

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

King W.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 2019001070

Hearing No. 530-2018-00218X

Agency No. 4C-150-0029-13

DECISION

On October 5, 2018, 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
September 20, 2018 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. The Commission accepts the
appeal in accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Supervisor, Customer Services at the
Agency’s Jeannette Post Office facility in Jeannette, Philadelphia.

According to Complainant, his medical conditions prevented him from reporting to work after
August 30, 2012. In early December 2012, he submitted an application for disability retirement.
Beginning in January 2013, Complainant was issued various disciplinary actions, including a
Letter of Warning, for his absences from August 30, 2012 through February 13, 2013.

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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Believing that he was subjected to discrimination, Complainant contacted an EEO Counselor.
Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on May
28, 2013, Complainant filed a formal complaint based on disability and in reprisal for prior
protected EEO activity.

The Agency framed the claim in the following manner:

Complainant was forced to retire effective March 11, 2013.2

Following an investigation, on February 10, 2014, the Agency issued a final decision finding no
discrimination. Complainant was provided appeal rights to the Merit Systems Protected Board
(MSPB). An MSPB Administrative Judge (AJ) issued an Initial Decision on October 30, 2015,
dismissing the appeal for lack of jurisdiction. The MSPB AJ found that Complainant had not
provided nonfrivolous allegations of fact which could establish a prima facie case over which the
MSPB had jurisdiction. The Initial Decision became final on December 4, 2015, which
Complainant petitioned the EEOC to review.

In a prior decision, the Commission determined that because the MSPB did not address the
allegations of discrimination, the matter was no longer considered a “mixed case”. See
Complainant v. United States Postal Service, EEOC Petition No. 0320160014 (Jan. 28, 2016).
The request for review was denied and the now “non-mixed” matter was remanded to the
Agency, to inform Complainant of his right to elect a hearing before an EEOC AJ or an Agency
final decision.

Complainant timely requested a hearing with an EEOC AJ. On June 6, 2018, the AJ assigned to
the case notified the parties of the intention to issue a decision without a hearing. Complainant
alleged that he had a disability, was qualified for the job, but was forced to retire because the
Agency failed to provide a reasonable accommodation. In response, the Agency claimed that it
was unaware that Complainant needed an accommodation to perform his job duties. The parties
did not dispute that when Complainant failed to report to work and exhausted his leave, he was
issued progressive discipline for attendance. After Complainant’s disability retirement was
approved, the disciplinary actions related to attendance were removed. According to the AJ,
Complainant had not provided any evidence to support his assertion that he requested a
reasonable accommodation prior to his last day or that he was forced to take disability
retirement. Further, the AJ noted that Complainant is now unable to work in any capacity.

In response to the AJ’s June 6, 2018 Notice, the Agency reiterated its contention that it had no
knowledge of Complainant’s alleged disability, nor any need for an accommodation. The
Agency argued that Complainant did not provide any information regarding when, how, or to
whom he made such a request.

2 While initially defined and accepted as distinct claims, the various disciplinary actions were
subsequently considered by the Agency as simply supportive evidence of the retirement claim in
a revised “Acceptance for Investigation – Mixed Case.”
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Regarding the basis of reprisal, the Agency argued there was no evidence that the relevant
management officials were aware of Complainant’s prior EEO activity. The Agency asked that
the AJ grant summary judgment and issue a decision finding no discrimination.

Complainant, in his submission, provided the AJ a September 13, 2012 letter informing the
Agency of his disabilities and requesting a reasonable accommodation. The letter explained that
his impairments prevented him from carrying mail.

In a subsequent teleconference between the AJ and the parties, Complainant indicated that he
was seeking a reassignment as a reasonable accommodation. While he could not identify a
specific open position, Complainant informed the AJ that there was “Customer Service Analyst”
position he believed he could perform. Thereafter, on July 12, 2018, the AJ ordered the parties to
further brief and supplement the record with respect to the following matters: Complainant’s
admitted inability to work prior to September 13, 2012; any discussions regarding the request for
a reasonable accommodation; and the timeline of events between the September 2012 letter and
Complainant’s contact with the EEO Counselor.

After considering the written replies of both parties, on September 7, 2018, the AJ issued a
decision granting summary judgment in the Agency’s favor. While the Agency maintained that
it did not receive Complainant’s letter requesting an accommodation, the AJ reasoned that even
if the Agency had received Complainant’s letter, Complainant failed to meet his burden of
identifying a vacant, funded position available at the time of his retirement that he was qualified
to perform. Moreover, the record established that Complainant stated repeatedly that he was
unable to work, leading the AJ to conclude that Complainant was not qualified for the
Supervisor, Customer Services position he held or any other possible reassignment during the
relevant time.

Complainant filed the instant appeal. He does not submit any arguments or brief.

ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other
words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated.
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See id. at Chapter 9, § VI.A. (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”).

Summary Judgment

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. 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. 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.

The instant case reflects that the AJ provided ample notice of her intent to issue a decision
without a hearing, provided the parties with an opportunity to respond, and oversaw additional
supplementation of the record as necessary. In order 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, he 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.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Reasonable Accommodation

Under the Commission's regulations, an agency is required to make reasonable accommodation
to the known physical and mental limitations of an otherwise qualified individual with a
disability unless the Agency can show that accommodation would cause an undue hardship. 29
C.F.R. § 1630.9.
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In order to establish that Complainant was denied a reasonable accommodation, Complainant
must show that: (1) he is an “individual with a disability,” as defined by 29 C.F.R. § 1630.2(g);
(2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the
Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).

The instant record contains numerous statements by Complainant indicating he was unable to
work. In a pre-disciplinary interview regarding his attendance, dated February 14, 2013,
Complainant plainly stated that “I medically cannot perform my duties” and “unless there is a
miraculous discovery I will never be able to return to my job.” In the interview, he also noted
that he had applied for disability retirement. In his affidavit, Complainant described his
conditions as “permanent”, “can be controlled but not fix[ed]”, and “working causes pain.”
Therefore, Complainant is not “qualified” for his position.

Even assuming Complainant was a qualified individual with a disability, entitled to an effective
reasonable accommodation, Complainant has not met his evidentiary burden. While
Complainant is entitled to an effective reasonable accommodation, he is not entitled to the
accommodation of his choice. Lynette B. v. Department of Justice -- Bureau of Alcohol,
Tobacco, Firearms & Explosives, EEOC Appeal No. 0720140010 (December 3, 2015). Here,
the only possible accommodation presented by Complainant, during a teleconference with the
EEOC AJ, is reassignment. The Commission has long held that reassignment is the reasonable
accommodation of last resort and is required only after it has been determined that there are no
effective accommodations that will enable Complainant to perform the essential functions of her
current position or all other reasonable accommodations would impose an undue hardship.
Zachary K. v. Department of Veterans Affairs, EEOC Appeal No. 0120130795 (November 19,
2015) citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002).
Moreover, in cases regarding reassignment a complainant must present sufficient evidence to
support a finding that, more likely than not, there was a vacant, funded position, for which he
was qualified and to which he could have been reassigned. See Barnard v. United States Postal
Service, EEOC Appeal No. 07A10002 (August 2, 2002). Complainant has failed to do so.

Constructive Discharge

Here, Complainant contends that he was “forced” to retire, and that his retirement constituted a
constructive discharge. A constructive discharge occurs when an employee resigns from his
employment because he is being subjected to unlawful employment practices. If the resignation
is directly related to the agency's unlawful employment practices, it is a foreseeable consequence
of those practices and constitutes a constructive discharge. See Pernell v. Nat'l Archives &
Records Admin., EEOC Appeal No. 0120051935 (Oct. 31, 2006). The agency is responsible for
a constructive discharge in the same manner that it is responsible for the outright discriminatory
discharge of a charging party.

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The Commission has established three elements which a complainant must prove to substantiate
a claim of constructive discharge: (1) a reasonable person in the complainant's position would
have found the working conditions intolerable; (2) conduct that constituted discrimination
against the complainant created the intolerable working conditions; and (3) the complainant's
involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of
Justice, EEOC Request No. 05940688 (Apr. 13, 1995).

Complainant has failed to prove he was subjected to discrimination, based on disability or his
prior EEO activity. There is no evidence indicating that the Agency’s actions created an
intolerable working condition.

CONCLUSION

The Agency’s final order implementing the AJ’s finding of no discrimination was proper and is
AFFIRMED.

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.
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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. 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

March 20, 2019
Date