Von E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 7, 20190120171737 (E.E.O.C. Feb. 7, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Von E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120171737 Hearing No. 480-2015-00457X Agency No. 4F920013314 DECISION 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 February 27, 2017, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Agency’s Riverside Main Post Office in Riverside, California. Due to a work injury in June 2014, Complainant had work restrictions. Complainant averred his medical condition restricted him from walking or standing more than four hours a day, lifting more than ten pounds, and bending or stooping. These restrictions do not meet the requirements for his City Carrier position and, therefore, a limited duty job assignment was necessary after he returned to work on July 5, 2014. 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. 0120171737 2 Complainant alleged in his affidavit that for approximately two to three weeks beginning on August 8, 2014, he was sent home short of working eight hours. Complainant’s immediate supervisor (S1) informed him on various days to leave early because there was no work available within his restrictions. Complainant disputed that there was no work available. Complainant argued that available work was given to other employees. The record establishes Complainant was offered a modified assignment (limited duty) within his restrictions on September 18, 2014, by S1. On December 2, 2014, Complainant was offered another modified assignment (limited duty) within his restrictions which Complainant signed. On December 27, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (black), and disability (back) when: 1. On or about August 9, 2014, through an unspecified date, management failed to timely provide him with a written Limited Duty job offer; and 2. On or about September 15, 2014, Complainant was sent home and told there was no work available within his restrictions. 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 requested a hearing. On August 15, 2016, the Agency filed a Motion to Compel or in the Alternative Motion to Dismiss Hearing Request and Motion to Extend All Deadlines. The Agency averred that Complainant repeatedly refused to sign an authorization for medical information regarding the workers’ compensation injury and accompanying restrictions for its investigation into his EEO complaint. On January 24, 2017, the AJ dismissed the hearing request on the grounds that Complainant was put on notice by the Agency’s Motion that his request could be dismissed and he did not respond to the Agency’s Motion. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed. 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 0120171737 3 its interpretation of the law”). Complainant has not challenged the AJ’s dismissal of the hearing request. 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). She must generally establish a prima facie case by demonstrating that she 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 in this case, however, since 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); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Here, the Agency's legitimate, nondiscriminatory reason for providing him a written modified assignment offer in September and again in December 2014, was that management was determining available positions within his restrictions. The record establishes after his injury, as soon as he returned to work, he was assigned limited duty work within his restrictions. Complainant does not allege while working in his modified assignment that the duties were outside of his medical restrictions. He alleges the Agency did not “timely” offer him a written, formal modified assignment. A review of the record establishes Complainant was offered a modified assignment in writing on September 18, 2014, and that prior to that offer, the Agency was accommodating him based on his restrictions starting around July 5, 2014. To meet his burden of proving that the Agency's actions were pretextual, Complainant needs to demonstrate such “weaknesses, implausibility, 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.” Evelyn S. v. Dep't of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Complainant has failed to establish by the preponderance of the evidence that this proffered reason is a pretext for discrimination. Additionally, the Agency averred sending Complainant home was due to no available work within his restrictions. Complainant alleges he was told there was no work and sent home early when other employees with restrictions were not sent home. Complainant alleged two Caucasian female carriers he works with were treated more favorably than him by receiving job offers before him and not being sent home when he was. Regarding C1, S1 and S1’s supervisor (S2) averred that while they did not supervise her, they both believed her restrictions prevented her from working eight hours a day. Regarding C2, Complainant stated C2 was in a limited duty position working at a different station than him. Additionally, S1 averred to his knowledge C2 was already in her assigned modified position prior to Complainant’s injury. Complainant failed to provide evidence to establish that C1 and C2 are similarly situated individuals outside of his protected class who are treated more favorably than him. 0120171737 4 Accordingly, Complainant has failed to establish by the preponderance of the evidence that this proffered reason is a pretext for discrimination. To the extent that Complainant is claiming he was denied a reasonable accommodation,2 we find that even if we consider for the sake of argument that Complainant is a qualified individual with a disability, he has not shown that he was not accommodated or forced to work beyond his medical restrictions. CONCLUSION We AFFIRM the Agency’s decision finding no discrimination. 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. 2 The complaint was not defined as alleging a denial of a reasonable accommodation and Complainant has not challenged the definition of the complaint. 0120171737 5 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 February 7, 2019 Date Copy with citationCopy as parenthetical citation