Terrell C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Apr 16, 2019

0120180611 (E.E.O.C. Apr. 16, 2019)

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

Terrell C.,1
Complainant,

v.

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

Appeal No. 0120180611

Hearing No. 451-2015-00024X

Agency No. 4E-852-0094-14

DECISION

On December 1, 2017, 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
November 2, 2017 final order concerning his equal employment opportunity (EEO) complaint
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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales, Service, &
Distribution Associate at the Agency’s Commerce Station in Las Cruces, New Mexico.

On June 24, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him based on disability (back and neck condition, foot surgery) when, as of February 26,
2014, management failed to provide Complainant light duty work.

The Agency accepted Complainant’s claim for EEO investigation.

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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Investigation

During the EEO investigation, Complainant stated, on January 23, 2014, he had surgery on the
big toe of both feet and, on February 26, 2014, his doctor released him to return to work on light
duty. Complainant stated, on February 27, 2014, he made a written request to Postal
management for light duty. Complainant stated that he was sent home and told to obtain
additional medical documentation. Complainant stated that he had to use sick and annual leave
unnecessarily because the Agency failed to provide him light duty. Complainant stated that he
could have performed computer tasks, other miscellaneous duties, and answered telephones for
light duty. Complainant alleged that the Agency did not provide him light duty because he is a
veteran and can seek treatment at Department of Veterans Affairs’ clinics.

The Acting Station Manager (S1) stated that he received a written request from Complainant
about February 28, 2014 and then one on March 30, 2014. S1 stated that Complainant did not
request accommodation, but rather “Light Duty, as tolerated.” S1 stated that Complainant’s
medical documentation added, “Please allow to rest and elevate as needed. No excessive
walking or standing.” S1 stated that Complainant’s position required the ability to stand at the
retail counter and walk to the carrier cases to retrieve mail. S1 noted that the Occupational Nurse
asked Complainant to provide documentation with more precise restrictions so that management
could determine how to utilize him best. S1 stated that he does not usually provide light duty for
off-the-job illnesses because tasks would have to be made up. S1 stated that Complainant was
released to full duty on March 26, 2014.

In pertinent part, the record contains the documents that follows:

▪ Complainant’s letter, dated February 26, 2014, addressed to Las Cruces
Postmaster stating: “I would like to request light duty starting March 3 2014.
My doctor has said I can return to work under light duty conditions.”

▪ Letter, dated February 26, 2014, from Complainant’s Physician (P1) stating:
“[Complainant] . . . has been released to return to WORK as of 3/3/14 . . .
Light Duty, as tolerated. Please allow to rest and elevate as needed. No
excessive walking or standing.”

▪ Letter, dated March 17, 2014, from Agency’s Regional Occupational Health
Nurse to Complainant, stating:

Your supervisor requires you to clear your documentation through the
health unit prior to return to duty. You have approved [Family and
Medical Leave Act] leave through April 4, 2014 but on 2/26/2014 you
submitted a note releasing you to light duty work. The objective
medical rationale supporting the recommendation was not provided.

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▪ Letter, dated March 26, 2014, from P1 stating: “[Complainant] . . . has been
released to return to WORK as of 3/31/14.”

Post-Investigation

Following the EEO investigation, 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
(AJ) or an immediate final agency decision. Complainant requested a hearing.

The assigned AJ determined that the complaint did not warrant a hearing, and, on September 26,
2017, issued a decision finding no discrimination. The AJ stated that veteran’s status is not
within EEOC purview and that “light duty” is provided under the collective bargaining
agreement in place. Further, the AJ stated that the medical documentation Complainant provided
did not identify specific medical limitations, restrictions, or duration and that Complainant’s
position required standing and walking eight hours per day. The AJ stated that Complainant
requested light duty due to foot surgery for a temporary condition and his physician released him
to full duty without restrictions as of March 31, 2014. The AJ found that Complainant failed to
provide adequate medical documentation to inform the Agency how Complainant could work
without further injury, so the Agency requested additional medical documentation. The AJ
stated that Complainant never completed the “light duty” request process and was returned to full
duty, which rendered his light duty request moot. The AJ found that the Agency did not deny
Complainant’s request.

On November 2, 2017, the Agency issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

The instant appeal from Complainant followed. On appeal, Complainant expressed
dissatisfaction with the AJ’s handling of the complaint. Further, Complainant stated that he
wanted “light duty” to a different position and he would settle the matter for an apology from
management to Veterans of the Postal Service.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

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As the AJ stated, status as a veteran is not within EEOC jurisdiction. See 29 C.F.R. § 1614.101.
Based on the record, we will review Complainant’s claim as one of denial of reasonable
accommodation.

Under the Commission's regulations, 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(o)
and (p).

After receiving a request for reasonable accommodation, the employer should engage in an
informal process with the disabled individual to clarify what the individual needs and identify the
appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement
Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002); see
also, Abeijon v. Dep’t of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012).
Protected individuals are entitled to reasonable accommodation, but they are not necessarily
entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No.
01931005 (February 17, 1994).

Assuming, without finding, that Complainant is an individual with a disability within the
meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency
failed to reasonably accommodate him or that it did so with unreasonable delay. Complainant
stated, on January 23, 2014, he had surgery on both feet and, on February 26, 2014, his doctor
released him to return to work on light duty. Complainant stated, on February 27, 2014, he
requested light duty, but was sent home (had to use sick and annual leave) and informed that he
had to provide additional medical documentation. Complainant stated that the Agency could
have provided him light duty of computer tasks, answering telephones, and other miscellaneous
duties, but did not do so because he is a veteran.

Complainant’s Manager, S1, stated, about February 28, 2014, Complainant requested light duty,
at which time he provided medical documentation to support his request. The medical
documentation stated, “Light Duty, as tolerated. Please allow to rest and elevate as needed. No
excessive walking or standing.” S1 stated that Complainant’s position required the ability to
stand at the retail counter and walk to the carrier cases to retrieve mail. The Agency’s
Occupational Nurse asked Complainant to provide documentation with more precise restrictions
so that management could determine how to utilize him best. Approximately a month later, as of
March 31, 2014, Complainant’s physician released him to full duty.

Based on the circumstances herein, we find that the Agency did not discriminate against
Complainant based on disability when it did not provide Complainant “light duty” work. We
remind Complainant that he is not entitled to the accommodation of his choice. See EEOC
Enforcement Guidance on Reasonable Accommodation, question 9. We add that permitting the
use of leave, as Complainant stated he had to use here, is a form of reasonable accommodation.
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See EEOC Enforcement Guidance on Reasonable Accommodation, question 16. (The Agency
was not required to make up tasks for Complainant to complete each day as he suggested.)
Further, we find that the Agency did not discriminate against Complainant when it sought
additional medical documentation to support Complainant’s request.

To the extent that Complainant alleged disparate treatment, we find that Complainant failed to
show the legitimate, nondiscriminatory reason articulated by the Agency for its action is
pretextual.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency 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). 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

April 16, 2019
Date