Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Mar 25, 2015

0120133415 (E.E.O.C. Mar. 25, 2015)

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

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120133415

Hearing No. 430-2012-00109X

Agency No. 4H-350-0031-11

DECISION
On September 8, 2013, Complainant filed an appeal from the Agency’s August 12, 2013 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. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND
Complainant worked as a Part Time Regular Mail Processing Clerk at a Post Office in Mobile,
Alabama. On March 12, 2011, Complainant filed an EEO complaint in which he alleged that
a Customer Services Supervisor, his immediate supervisor (S1), two Customer Service
Managers (CSM1 and CSM2) and one of the Postmasters (PM1) had discriminated against him
on the basis of disability by allowing him to be harassed by a Custodian, one of his co-workers
(CW), between November 2010 and February 2011. He also alleged that the above-named
officials failed to provide him with a reasonable accommodation in February 2011 and
thereafter. The Agency initially dismissed his complaint for failure to state a claim but in
Complainant v. United States Postal Service

, EEOC Appeal No. 0120112700 (October 18,
2011), the Commission ordered the Agency to process the complaint.
Complainant alleged that, beginning on November 20, 2010, and continuing through January
2011, CW threatened and intimidated him, and that when he complained about the situation to
S1, she did nothing other than tell him to be a man and stand up for himself. Investigative
Report (IR) 134-36, 182-83. According to Complainant, the bullying began after an
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altercation that he had with CW on November 19, 2010. CSM2 had investigated the situation
and directed Complainant and CW not to interact with each other. IR 208-09, 220, 232. S1
denied that she told Complainant to stand up to CW, and pointed out that the Agency had a
zero tolerance for harassment. IR 205, 208-10. CW denied bullying Complainant and stated
that in accordance with CSM2’s orders, he stayed out of Complainant’s work area. IR 205-06,
245-46. Another of Complainant’s co-workers, a Clerk, averred that she was afraid of
Complainant because she thought he was paranoid. IR 251-53.

When asked why he believed that his disability was a factor in the alleged harassment,
Complainant averred that the management team was aware of his medical history (back
condition, traumatic brain injury, post-traumatic stress disorder, major depression, and
migraines). IR 137, 139. Another Postmaster (PM2) issued a report on the situation, noting
that PM1 was fully aware of the problem and that it was nothing more than a case of two
poorly performing employees behaving badly toward one another. IR 180-81. In addition,
two clerks with whom Complainant regularly interacted stated that they never observed any
incidents in which CW bullied or intimidated Complainant. IR 249, 251-53.

Complainant also alleged that, between December 2010 and August 2011, he made numerous
requests to be trained in other jobs and that management refused to grant his requests, telling
him that he did not come in to work enough. IR 136, 147-48, 162. He characterized the
denial of his requests as a failure to reasonable accommodate his disability. When asked what
specific accommodations he was requesting, Complainant replied that he wanted to be
appointed as a 204B acting supervisor, and that he wanted opportunities to work as a passport
clerk, a postage due clerk, and a mark-up clerk. He also expressed a desire to work at the
customer service window. IR 148, 160-61. When asked how his requested accommodations
would enable him to perform the functions of his position, he replied that those
accommodations would have extended his career at the Agency. IR 148.

S1, CSM1, and CSM2 all testified in their affidavits that they were unaware that
Complainant’s medical conditions limited his ability to perform the functions of his job or that
he needed an accommodation. IR 201-04, 201-19, 229-31. PM2 noted in his report that
Complainant had a terrible attendance record, and that he was paranoid about the Postal
Inspectors watching him, his telephone being tapped, and his fellow employees turning against
him. IR 180.

At the conclusion of the ensuing investigation, the Agency notified Complainant of his right to
request a hearing before an EEOC Administrative Judge (AJ). Although Complainant timely
requested a hearing, the AJ assigned to the case granted the Agency’s motion for summary
judgment and issued a decision on August 2, 2013. 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.

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ANALYSIS AND FINDINGS
To warrant a hearing on his claim of discriminatory harassment, Complainant would have to
present enough evidence to raise a genuine issue of material fact as to whether CW subjected
him to conduct so severe or pervasive that a reasonable person in Complainant’s position
would have considered it hostile or abusive, and that they did so because of his disability. See
29 C.F.R. § 1614.109(g); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993); Wibstad
v. U.S. Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). Only if there is enough
evidence to go forward on both of those elements, hostility and motive, will the question of
Agency liability present itself. Complainant v. Department of Transportation (Federal
Aviation Administration)

, EEOC Appeal No. 0120131581 (July 18, 2014).
The affidavit testimony of S1, CSM1 and CSM2, along with PM2’s report, establishes that
Complainant and CW were involved in a single incident that occurred on November 19, 2010,
that CSM2 had investigated the matter and had the two of them separated, and that since
November 19, 2010, there had been no further interactions between them. Complainant has
not presented any sworn statements from other witnesses or documents that contradict the
explanations provided by those officials. He has not presented enough evidence to raise a
genuine issue of material fact as to whether he was subjected to conduct severe or pervasive
enough to constitute harassment.

We now address Complainant’s failure-to-accommodate claim. The Agency is required to
reasonably accommodate the known physical or mental limitations of a qualified individual
with a disability unless it can show that doing so would cause an undue hardship. 29 C.F.R.
§ 1630.9. We will assume, for purposes of analysis, that Complainant is a qualified individual
with a disability. The only “accommodation” that he asked for was training for jobs other than
the one he was performing. The record contains no testimony or documents tending to show
that Complainant was unable to perform the essential functions of his position as a Mail
Processing Clerk. What Complainant was asking for, in essence, was to be transferred to
another job so that he would not have to encounter CW. This “accommodation” had already
been granted by CSM2, when he directed that CW and Complainant be separated. We
therefore find that no genuine issue of material fact exists as to whether the Agency failed to
reasonably accommodate Complainant’s disability.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
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RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
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and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 25, 2015