Stuart M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 17, 20180120160409 (E.E.O.C. Apr. 17, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stuart M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120160409 Hearing Nos. 450-2014-00167X, 450-2015-00090X Agency Nos. 4G-752-0296-12, 4G-752-0296-12, 4G-752-0134-13 DECISION On October 24, 2015, 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 28, 2015, final order concerning his equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a City Letter Carrier, Grade Q-01/0, at the Agency’s Highland Hills Station in Dallas, Texas. In a series of three complaints filed on August 31, 2012 and March 5, 2013, Complainant alleged that two of his Station Managers (SM1 and SM2) and a Supervisor discriminated against him on the bases of disability (residual effects of on-the-job injury sustained in 1986) and reprisal (prior protected EEO activity) when: 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. 0120160409 2 1. On July 23, 2012, he was offered a new modified job offer and his hours were reduced; 2. On January 23, 2013, he was offered a new modified job offer of only four hours per day; and 3. On March 11, 2013, he was denied work Complainant suffered an on-the-job injury in 1986. Since that time, he has worked in a series of modified job assignments. On September 15, 2008, and again on May 27, 2010, Complaint was offered modified job assignments, both of which he accepted under protest. He filed a grievance on the May 2010 job offer, and as a result of prevailing, was returned to the modified job he held prior to May 27, 2010. AJ Decision, p. 6. As of January 31, 2012, Complainant was under the following medical restrictions: lifting up to 20 pounds but not able to carry mail; no climbing; no more than one hour of kneeling, bending, stooping, twisting, pushing or pulling; no extreme temperatures; and no outside work. AJ Decision, p. 7. SM1 averred that, beginning in the Summer of 2012, the Highland Hills Station was being downsized. One consequence of downsizing, according to SM1, was that managers could no longer offer carriers modified job assignments that entailed having to perform the duties of a clerk. On July 23, 2012, SM1 completed a priority assignment worksheet indicating that he could only find two hours of adequate work within Complainant’s restrictions of January 2012. Complainant was offered a modified assignment that consisted of casing mail for one to two hours per day. AJ Decision, p. 7. Concerning incident (1), SM1 averred that as of September 20, 2012, Complainant’s medical restrictions included: lifting up to twenty pounds without carrying mail; no climbing; up to one hour per day of kneeling, bending, stooping, twisting, pushing, and pulling; and no extreme temperatures or working outside. SM1 averred that he referred Complainant to the District Reasonable Accommodation Committee (DRAC), which scheduled a meeting for October 11, 2012. Complainant did not participate in that meeting. He sent a letter to the head of the DRAC in which he stated: “I appreciate the invite, [but] I have been processed through the mechanisms provided by the Federal Employee Compensation Act and the respective collective bargaining agreements.” AJ Decision, p. 8. Regarding incident (2), as of November 29, 2012, Complainant’s medical restrictions remained the same as they were on September 20, 2012. AJ Decision, pp. 8-9. On December 1, 2012, SM2 took over as the Station Manager for the Highland Hills Station. SM2 averred that he offered Complainant a new modified job assignment with up to four hours of work that included: casing mail up to four hours per day; editing books and case labels up to two hours per day; and pulling collection boxes up to twenty minutes per day. SM2 averred that he sent Complainant home for lack of work only on January 19, 2013 and January 24, 2013, and that since then, he supplemented Complainant’s carrier duties with up to four hours of “odds and ends” work so that Complainant could work an eight-hour day. 0120160409 3 As to incident (3), on March 5, 2013, Complainant submitted documentation indicating that his medical restrictions had changed slightly. The new restrictions included: no lifting above twenty pounds; no carrying mail; no climbing; no more than one hour per day of kneeling, bending, stooping, twisting, pushing, and pulling; no more than four hours per day of reaching above the shoulders; taking frequent breaks while operating a motor vehicle; and no extreme temperatures or outside work. On March 11, 2013, SM2 directed Complainant to case letters on the “hot case.” While he was doing this, a Supervisor approached Complainant and told him to stop casing the mail. The Supervisor averred that the hot case was not within his modified job assignment and she could not take work away from the clerks to give to carriers. Nevertheless, Complaint worked for eight hours on March 11, 2013, and was paid for eight hours. AJ Decision, pp. 9-10. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s May 4, 2015, motion for a decision without a hearing and issued a decision without a hearing on September 9, 2015. In concluding that Complainant had not been discriminated against, the AJ made a number of findings: • Complainant was paid for 8 hours of work per day between July 23, 2012, and August 8, 2012. Between August 9, 2012, and November 17, 2012, Complainant was paid for two hours of work per day and was given six hours of Workers’ Compensation benefits for the remainder of each day. After November 19, 2012, Complaint was paid for eight hours of work per day. AJ Decision, pp. 8, 13. • Complainant failed to establish that the Agency took adverse actions against him. Rather, Complainant was assigned work within his restrictions and had declined to participate in an interactive process before the DRAC. AJ Decision, p. 13. • With the exception of January 19, 2013 and January 24, 2013, SM2 had given Complainant an additional four hours of work, enabling him to work an eight-hour day. AJ Decision, p. 13. • The Supervisor had asked Complainant to stop working the “hot case,” because that job function was reserved for clerks who were scheme-qualified. AJ Decision, pp. 14-15. 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. On appeal, Complainant contests the AJ’s findings and conclusions on the merits. He also appears to be arguing that the Agency failed to provide him with a reasonable accommodation. Appeal Brief, p. 10. 0120160409 4 ANALYSIS AND FINDINGS 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. We first address the question of reasonable accommodation. Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result in undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). For purposes of analysis, we will assume, without deciding, that Complainant is a qualified individual with a disability. Therefore, the only question before us on the reasonable accommodation claim is whether the Agency satisfied its statutory obligation. As a qualified individual with a disability, Complainant would be entitled to an effective accommodation, but not necessarily the accommodation of his choice. Kristie D. v. U.S. Postal Service, EEOC Appeal No. 0120160236 (Feb. 6, 2018); Gerard M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120150491 (Feb. 21, 2018), citing Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). Complainant had been under medical restrictions during the entire time frame in which the three incidents comprising his complaint had taken place. Those restrictions, with minor variations, included a twenty-pound weight limitation, and limitations on various physical activities which, in the aggregate, prevented him from carrying mail on a full-time basis. The AJ found that both SM1 and SM2 attempted to find work for Complainant that was within his medical restrictions, and had often done so successfully. Moreover, Complainant himself declined to participate in an interactive session before the DRAC when given the opportunity to do so, preferring instead to use workers’ compensation. The AJ found that Complainant had been receiving compensation for eight hours per day between July 2012 and March 2013, either through his regular salary, workers’ compensation benefits, or some combination of the two. 0120160409 5 Although Complainant challenges the AJ’s interpretation of the record concerning the details of the assignments that he was given, he has not presented any evidence that tends to raise a genuine issue of material fact as to whether the Agency satisfied its obligation to provide Complainant with a reasonable accommodation of his disabilities. We therefore move on to Complainant’s claim of disparate treatment. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This analysis also applies to disparate treatment claims brought under the Rehabilitation Act. Prewitt v. United States Postal Service, 662 F. 2d 292, 310 (5th Cir. 1981). As a first step, Complainant is usually required to establish a prima facie case of disparate treatment by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate and nondiscriminatory reasons for each incident at issue in this complaint. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). As to incident (1), the AJ found that Complainant was given the opportunity to appear before the DRAC, but declined. As to incident (2), the AJ found that SM2 had given Complainant eight hours of work per day, including four hours of limited carrier duties and four hours of other work that needed to be done around the station. As to incident (3), the AJ found that Complainant could not case mail on March 11, 2013, because he was not scheme-qualified. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanations given by SM1, SM2, and the Supervisor for their actions in incidents (1), (2), and (3) are pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). 0120160409 6 As previously noted, Complainant on appeal disputes many of the details concerning the assignments given to him by SM1 and SM2 between July 2012 and March 2013. However, none of these disputed facts go to the material issue of the existence of an unlawful motivation on the part of SM1, SM2, or the supervisor. Complainant has likewise not presented affidavits, declarations or unsworn statements from witnesses other than himself nor documents that contradict the explanations provided by these officials or which call their veracity into question. We therefore agree with the AJ that Complainant has failed to raise a genuine issue of material fact regarding whether SM1, SM2, or the Supervisor unlawfully took into account considerations of his disability or prior EEO activity in connection with the incidents at issue in his complaints. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing finding that Complainant did not establish that he was discriminated against. 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. 0120160409 7 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 April 17, 2018 Date Copy with citationCopy as parenthetical citation