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

Equal Employment Opportunity Commission

Apr 12, 2019

0120182313 (E.E.O.C. Apr. 12, 2019)

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

Blake H.,1
Complainant,

v.

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

Appeal No. 0120182313

Hearing No. 530-2017-00246X

Agency No. 4C-080-0122-16

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated June 7, 2018, finding no discrimination
regarding his 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. For the
following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Letter Carrier,
OO-08, at the Agency’s Pleasantville Carrier Annex facility in Pleasantville, New Jersey.

On November 16, 2016, Complainant filed his complaint alleging discrimination based on
disability (back, shoulder) when on or around June 6, 2016, he was issued a separation disability
letter effective July 10, 2016.2

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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2

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On March 1, 2018, the Agency filed a Motion for
Summary Judgment. Complainant did not file a timely response. On May 30, 2018, the AJ
issued a decision without holding a hearing, finding no discrimination. The Agency’s final order
implemented the AJ’s decision. Complainant appeals the Agency’s final order.

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. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable
accommodation, complainant must show that: (1) he or she is an individual with a disability, as
defined by 29 C.F.R. § 1630.2(g); (2) he or she 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
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). 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. See 29 C.F.R. §
1630.2(o) and (p). The Commission shall assume without deciding (for the purposes of this
decision) that Complainant is an individual with a disability.

As a Rural Carrier, Complainant indicated that he was required to carry up to 70 pounds and
perform other physical activity, including right hand driving and putting mail into mail boxes.

2 The record indicates that Complainant initially alleged but subsequently withdrew/abandoned
his age and reprisal claims.
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In December 2007, Complainant suffered work related injuries to his back and shoulder that kept
him out of work for nearly 7 years. On September 12, 2014, he returned to work with a limited
duty assignment with 4 hours of work daily. In that limited assignment, Complainant’s duties
involved separating and scanning parcels which entailed pushing, pulling, and lifting less than 10
pounds, and standing, walking, bending, stooping, simple grasping, reaching above the shoulder,
twisting, climbing, and driving.

On September 25, 2014, Complainant aggravated his back condition and went to the emergency
room. He subsequently returned to work and continued to work in his limited duty position until
he was injured in an off-duty motor vehicle accident on January 16, 2015. After that accident,
Complainant did not come to work. Regarding his physical conditions, Complainant indicated
that due to his right shoulder tendonitis and lower back pain and a cervical injury caused by the
motor vehicle accident, he had pain in his right shoulder and arm, in addition to right wrist pain.
He also indicated that he had disk impingement and herniated disks which caused pain when
bending over, twisting, pushing, pulling, and stooping.

On January 29, 2015, the Agency requested Complainant submit medical documentation in
support of his absences. Complainant failed to do so. On March 10, 2015, Complainant was
issued a 7-day suspension for failure to follow instructions and attendance. On March 11, 2015,
the Agency again requested Complainant submit medical documentation. Complainant failed to
do so. Instead, Complainant indicated that he sent his medical report to Department of Labor -
Office of Workers’ Compensation Programs wherein which his doctor noted he was not released
to work. The Agency indicated that effective March 7, 2015, Complainant was placed in Leave
Without Pay (LWOP).

On May 18, 2016, when Complainant did not return to work and he had been in LWOP status for
more than 15 months, he was issued a letter entitled “Options of Employment.” Therein, he was
notified with his options including the accommodation of changing positions, resigning his
position, applying for disability retirement, or being involuntarily separated. On May 25, 2016,
Complainant responded to the letter indicating that he did not want to return to work or choose
any options indicated therein. On June 6, 2016, Complainant was issued a letter indicating that
he would be separated effective July 10, 2016, due to his not reporting to work since March 6,
2015, without submitting sufficient medical documentation as requested.

Here, Complainant admitted that he was unable to perform the essential functions of his Rural
Carrier duty due to his conditions. Complainant failed to report to duty and failed to submit the
requested medical documentation to support his absences after his motor vehicle accident.

In the instant case, the AJ incorporated the Agency’s Motion for Summary Judgment. The AJ
indicated that the Agency’s Motion outlined the factual background and provided a sound and
persuasive analysis. After a review of the record, we find that the record is adequately developed
and there are no material facts in dispute. We also find that the AJ properly found that the
complaint was properly decided without a hearing and that the AJ properly incorporated the
Agency’s Motion.
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Upon review, the AJ found, and we agree that there is no evidence that the Agency’s articulated
reasons were untrue or otherwise indicative of pretext. Furthermore, we find that Complainant is
not a qualified individual because he could not perform the essential functions of the position
and did not identify any vacant funded position which was suitable for him. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination 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.
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).

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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 12, 2019
Date