Clifford L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Apr 19, 2019

2019001264 (E.E.O.C. Apr. 19, 2019)

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

Clifford L.,1
Complainant,

v.

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

Appeal No. 2019001264

Hearing No. 471-2014-00055X

Agency No. 4J-481-0126-13

DECISION

On October 25, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s September 27, 2018 final action concerning an equal employment opportunity (EEO)
complaint claiming 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., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a City Letter Carrier at the Agency’s Roseville,
Michigan Post Office.

On October 3, 2013, Complainant filed a formal complaint. Complainant claimed that the Agency
discriminated against him based on disability, age (over 40), and in reprisal for prior EEO activity
when since February 2013, he was denied a reasonable accommodation as reflected in the
following claims:

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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a. in February 2013, Complainant submitted a light duty request which was denied on
April 12, 2013;

b. on March 6 and 8, 2013, and April 17, 2013, he requested an accommodation of
reassignment to the Troy, Michigan Call Center, and on July 17, 2013, he was informed
that he was not eligible to be hired at the Call Center and would have to be reinstated;

c. on June 18, 2013, he became aware that his CA-2 “Notice of Occupational Disease and
Claim for Compensation” and CA-7 “Claim for Compensation” forms submitted on
May 8, 2013, had not been completed and forwarded to the appropriate office; and

d. on July 23, 2013, his request for reinstatement (as noted in claim (b)) was denied.

After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a
Decision Without a Hearing. On September 20, 2018, the AJ issued a decision by summary
judgment in favor of the Agency.

AJ’s Identification of Pertinent Undisputed Facts

The AJ found the following pertinent undisputed facts were established during the investigation
of the complaint:

In November 2007, Complainant was diagnosed with atrial fibrillation (A-Fib). Complainant’s
other physical impairments included the following conditions: gastroesophageal reflux disease;
arrhythmia; heart palpitations; and hypertension. Complainant’s physician believed that his A-Fib
attacks were triggered by job-related stress.

Complainant asserted that he was unable to perform the essential functions of a Letter Carrier
position. Specifically, during an a-Fib attack, Complainant was unable to stand and case mail,
load his truck, deliver mail (walking up and down stairs, carrying mail bag), lift weights/heavy
items or drive due to blurry vision, headaches and nausea.

In February 2012, Complainant was placed on Leave Without Pay (LWOP) due to A-Fib-related
medical restrictions and he applied for disability retirement. Complainant remained on LWOP
through March 2013. From 2009 to 2013, Complainant missed approximately 150-200 days of
work due to the A-Fib condition.

In early 2013, Complainant learned that the Agency opened a Call Center in Troy, Michigan.
Complainant stated that it was his understanding that many light duty and injured clerks and letter
carriers could bid on these call center positions.

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On February 21, 2013, Complainant submitted updated medical restrictions to the Roseville Post
Office management and requested light duty.

On March 6, 2013, Complainant sent a letter to the Detroit District’s Health and Resource
Manager. Therein, Complainant explained that he had been on LWOP for the past year due to A-
Fib. Complainant stated that he applied for disability retirement in March 2012, and in February
2013, he received acknowledgment from the Office of Personnel Management (OPM) that his
application had been received.

Complainant further explained, however, that he could not wait any longer because he was close
to losing his medical insurance benefits. Specifically, Complainant stated that he was not seeking
a light duty assignment at the Royal Oak Post Office. Instead, Complainant requested that he be
assigned to the Troy Call Center, as an accommodation. Complainant believed he could perform
a job at the call center if he was not having a A-Fib attack.

On March 11, 2013, the Health and Resource Manager (Manager) sent a letter to Complainant
advising him that he was forwarding accommodation request to the Acting Labor Relations
Specialist who chaired the District Reasonable Accommodation Committee (DRAC). On March
18, 2013, Complainant hand-delivered a copy of the same letter sent to the Manager to then
Officer-in-Charge (OIC) of the Roseville Post Office.

On or about April 9, 2013, the OIC met with Complainant and his union representative. At that
time, the OIC had no prior knowledge of Complainant’s disability. Complainant informed the
OIC that his doctor put him on non-work status a year previously, and that Complainant was
concerned about losing his medical benefits because he had been in LWOP status over a year. On
April 4, 2013, Complainant was notified that his medical benefits had been terminated because he
had been in LWOP status for over one year.

Complainant also told the OIC that he had a disability retirement application pending with the
OPM. Complainant and the OIC discussed Complainant’s light duty request and the OIC told
Complainant that he could not provide him with a stress-free work environment. Furthermore, the
OIC told Complainant that he would refer him to the Medical Unit for medical clearance because
he had been on LWOP for so long.

On April 9, 2013, Complainant was notified that he was scheduled to meet with the DRAC on
April 17, 2013.

On April 12, 2013, the OIC sent Complainant a letter denying his light duty request because of the
length of time which Complainant had been in a non-duty status. The OIC stated that in the April
9, 2013 meeting, he advised Complainant that this would be his response to the light duty request
because Complainant repeatedly told him he could not work at the Roseville Post Office. The OIC
thought this was the best strategy toward getting Complainant’s accommodation request
considered.

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On April 17, 2013, Complainant met with DRAC. During the meeting, DRAC informed
Complainant that there was nothing that it could do. DRAC suggested that Complainant apply for
a Call Center position through eReassign, pursuant to standard protocol. The DRAC Chair stated
that if Complainant’s request could be facilitated through this process, it would be the first option.
At the same time, the DRAC was exploring other options for Complainant. However, the DRAC’s
efforts ceased three days after their meeting with Complainant when the DRAC Chair learned that
Complainant’s disability retirement had been approved.

On the same day that Complainant had met with DRAC, April 17, 2013, Complainant submitted
his reassignment request through eReassign. He sought to be transferred to the Royal Oak Bid
Cluster and to the Clerk craft.

In early May 2013, Complainant and the NALC Branch Compensation Officer prepared CA-2 and
CA-7 worker’s compensation forms as part of an effort to provide Complainant with backpay. On
May 7, 2013, the NALC Branch Compensation Officer gave the documentation to Roseville Post
Office union steward. Thereafter, the Roseville Post Office union steward gave the documentation
to the Roseville Post Office Supervisor on May 8, 2013.

Management was required to respond to Complainant’s CA-2 and CA-7 forms within ten days.2
On or about June 18, 2013, Complainant went to the Roseville Post Office to inquire about the
status of his paperwork and learned it was missing. He contacted the NALC Branch Compensation
Officer who in turn contacted the Roseville Post Office and was told that management was looking
for the paperwork. After the paperwork was found, the OIC did not submit it immediately because
he knew that Complainant’s disability retirement had been approved and it was his understanding
that this was ultimately what Complainant wanted. When the OIC found out that this was not the
case, he immediately submitted the documentation.

Complainant’s disability approval letter from the OPM was dated March 25, 2013, with an
effective separation date of April 25, 2013.

AJ Discussion of Claims (a) – (d)

In claim a, Complainant alleged that in February 2013, he submitted a light duty request which
was denied on April 12, 2013.

The OIC (over 40, unknown disability/prior protected activity) stated that during the relevant
period Complainant did not work “because he himself stated that he could not work and his doctor
placed him in a no-work status.” The OIC further stated that he denied Complainant’s light duty
request because he could not provide Complainant with a stress-free work environment. The OIC
stated that he told Complainant he would help him “try and forward his request for Light Duty. I

2 The record reflects that Complainant’s worker’s compensation claim was denied on September
23, 2013, because the injury for which compensation was claimed was determined to be non-work
related.
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told him that I would contact the Medical Unit and submit a request to obtain a meeting for him
before the District Reasonable Accommodation Committee (DRAC) of which I did both.”

In claim b, Complainant asserted that March 6 and 8, 2013, and April 17, 2013, he requested an
accommodation of reassignment to the Troy, Michigan Call Center and on July 17, 2013, he was
informed that he was not eligible to be hired at the Call Center and would have to be reinstated.

The AJ noted that evidence of record was clear that in February 2013, when Complainant initiated
his return to work, he did so because he was concerned about losing his medical benefits having
been in a LWOP status for over a year, and because his disability retirement application had not
been yet approved. The AJ determined that Complainant’s attempt to return to work was an option
of “last resort” for him.

The Health and Resource Manager (over 40, unknown disability/prior protected activity) explained
that Complainant retired from Agency employment since April 2013 and “if the complainant sent
a letter to me, then it was forwarded to the DRAC chairman [DRAC chairman].”

The Health and Resource Manager (Manager) stated that when Complainant requested to be
assigned to the Call Center, he was advised to apply for eReassign and “to my knowledge he did.
He was subsequently denied due to his retirement status.” The Manager explained that the
Agency’s contracts and regulations “does not allow us to simply place employees from outside the
clerk craft into the Call Center. The Call Center is a clerk craft facility. the contractually correct
way would be for an employee from outside the clerk craft to apply through eReassign.”

The DRAC Chairperson stated that on April 17, 2013, Complainant met with DRAC committee
and “I was notified three working days later that his disability retirement had been approved.” The
Chairperson further stated that Complainant’s transfer request to Troy, Michigan Call Center “was
considered moot due to his retirement.”

In claim c, Complainant asserted that on June 18, 2013, he became aware that his CA-2 and CA-7
forms submitted on May 8, 2013, had not been completed and forwarded to the appropriate office.

The OIC stated that during the relevant period he did not submit Complainant’s forms immediately
because he knew that Complainant’s disability retirement had been approved and it was his
understanding that this was what Complainant wanted. The OIC further stated that when he found
out that this was not the case, he immediately submitted the forms.

In claim d, Complainant alleged that on July 23, 2013, his request for reinstatement was denied.

The Manager stated that he denied Complainant’s request for reinstatement because he retired
from Agency employment on disability retirement. Specifically, the Manager responded to
Complainant stating “unfortunately, we cannot simply reinstate you to the Postal Service, as you
are now officially retired on the rolls of the Office of Personnel Management (OPM), in light of
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the fact that OPM maintains jurisdiction over your retirement status, you will have to follow
OPM’s established guidelines for consideration of reemployment with your previous agency…”

The record indicates that Complainant made no attempt to apply for reinstatement with the
Agency.

Based on the statements of various Agency officials as identified above, the AJ concluded no
discrimination was proven. On September 27, 2018, the Agency issued a final action implementing
the AJ’s decision.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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
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. (as revised, August 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).

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. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

Disparate Treatment

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
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Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did
not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed
to mask discrimination on the bases of disability, age, and prior protected activity.

Reasonable Accommodation

Under the Commission’s regulations, an agency is required to make reasonable accommodations
to the known physical and mental limitations of an otherwise qualified individual with a disability
unless an agency can show that accommodation would cause an undue hardship. 29 C.F.R. §
1630.9. We presume for purposes of analysis only, and without so deciding, that Complainant is
a qualified individual with a disability.

Here, Complainant claimed that management failed to provide him with a reasonable
accommodation. We find, however, that record evidence fully supports the AJ’s determination that
Agency management engaged Complainant in an interactive process to determine how it could
accommodate him. The AJ determined that the Agency had no intent to deny, and did not deny,
Complainant a reasonable accommodation. Specifically, the AJ noted the significance of the
timing of various events. Specifically, the AJ noted that Complainant’s disability retirement
application was approved on March 25, 2013, with an effective separation date from the Agency
on April 25, 2013. The AJ noted “based on the record, it is reasonable to find that Agency officials
believed that the matter was resolved once Complainant’s disability retirement application had
been approved.

The AJ noted further that following his retirement from Agency employment, Complainant was
under the jurisdiction of the OPM and required to seek reinstatement through the OPM. The AJ
determined that the Agency did not fail to accommodate Complainant when he was advised that
he was no longer eligible for a position in the Call Center and his reinstatement was denied.
Instead, Complainant was again advised that he needed to apply for reinstatement through the
OPM. Furthermore, the AJ noted there was no evidence in the record which shows that
Complainant ever pursued such a directive.

Finally, we note that on appeal, Complainant provides a comprehensive series of alleged incidents
of discrimination. For example, Complainant argues that he was subjected to harassment/a hostile
work environment and that the Postmaster forced him to retire from Agency management. These
matters, however, were never raised during pre-complaint processing or in the formal complaint,
which reflect solely the February 2013-July 2013 incidents. To the extent Complainant wishes to
pursue further these matters, he is advised to contact an EEO Counselor thereon.

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We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding
no discrimination.3

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).

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

3 On appeal, Complainant does not challenge the October 21, 2013 partial dismissal issued by the
Agency regarding one other claim. Therefore, we have not addressed this issue in our decision.

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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 19, 2019
Date