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

Equal Employment Opportunity Commission

Sep 1, 2015

01-2013-2385-0500 (E.E.O.C. Sep. 1, 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. 0120132385

Agency No. 1C-152-0015-12

DECISION

On June 3, 2013, Complainant filed an appeal from the Agency’s May 8, 2013 final decision
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. § 621 et seq. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor,
Maintenance Operations in Warrendale, Pennsylvania. On September 4, 2012, Complainant
filed an EEO complaint wherein he claimed that the Agency discriminated against him on the
bases of his disability and age (67) when on May 31, 2012, he was reassigned to Tour 2 and
his non-scheduled work days were changed. 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). When Complainant did not request a hearing within the time frame provided in 29
C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).

The Agency determined that Complainant failed to prove that his reassignment was unlawfully
motivated or that he was denied reasonable accommodation. The record reflects that
Complainant was issued a letter of reassignment by the Maintenance Manager on May 31,
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2012, notifying him that he would be reassigned from Tour 3 to Tour 2 effective June 24,
2012. The letter of reassignment also informed Complainant that his non-scheduled days
would be changed from Fridays/Saturdays to Tuesdays/Wednesdays.

The Agency stated that Complainant’s job duties involved supervising maintenance employees.
Specifically he was supposed to determine the causes of equipment failure; prepare
maintenance schedules; assign work and make sure work assignments are completed
satisfactorily; ensure compliance with maintenance standards and coordinate time for
maintenance activities. The Maintenance Manager stated that additional job duties for
Complainant entailed responding to emergencies, reacting to calls on the work floor, writing
work orders and making sure pay and leave are correct. The Maintenance Manager noted that
Complainant was also responsible for timekeeping and that he supervised up to thirty
employees on Tour 3.

Another Manager in Maintenance Operations stated that Complainant’s essential job functions
included walking two hours per day; climbing ladders 45 minutes per day; interacting with
employees three hours per day; computer use two hours per day; and critical and logical
thinking three hours per day. This official stated that Complainant was not allowed to climb
ladders due to his medical condition and that Complainant had to be constantly shown how to
perform his computer duties. The official noted that Complainant had difficulty entering time
adjustments for employees.

Complainant maintained that he was able to perform all of his job duties, except some
computer work, without reasonable accommodation. Complainant stated that he developed
vision problems as a result of a stroke two years before the reassignment and that he therefore
needed job accommodations on Tour 3 to perform computer work. Complainant also asserted
that he was diagnosed with diabetes two years before the reassignment and a heart condition
four years prior to the reassignment. According to Complainant, his medical conditions limit
his ability to perform various major life activities, such as learning, reading, concentrating,
thinking and communicating. Complainant indicated that the duration of his condition is
indefinite, and no improvement is expected.

Complainant explained that he received the assistance of a supervisor on Tour 3 in order to
accomplish job duties such as end of year evaluations, emails, and computer work.
Complainant asserted that he submitted requests for computer training but these requests were
ignored. Complainant claimed that the Maintenance Manager instructed him to allow another
individual to perform the computer tasks. According to Complainant, his physician provided a
statement indicating that a change in shift would exacerbate his existing medical conditions.
Complainant claimed that his condition became worse due to the stress caused by the
reassignment. Additionally, Complainant argued that the reassignment to Tour 2 interfered
with his ability to commute to work as he had arranged for coworkers on Tour 3 to drive him
to work.

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The Agency determined that Complainant is an individual with a disability. The Agency stated
that Complainant has an impairment that substantially limits one or more major life activities.
However, the Agency determined that Complainant did not establish that he is a qualified
individual with a disability. Management officials stated that Complainant was not able to
perform computer work. These officials further stated that Complainant was unable to respond
to calls on the floor, and he forgot where he assigned personnel. According to the Agency,
Complainant would assign tasks to the wrong people, transpose names on assignment sheets
and schedule the wrong person for overtime. The Agency asserted that Complainant was also
unable to climb ladders.

The Agency determined that Complainant failed to establish that he could perform the essential
functions of his position, with or without reasonable accommodation. The Agency noted that
Complainant claimed that his requests for computer training were ignored. However, the
Agency maintained that one or more management officials repeatedly showed Complainant
how to use different computer programs, but without success. The Agency stated that
Complainant forgot where he assigned employees and he made mental errors and lapses.
Complainant attributed his confusion to vision problems, which he stated interfered with his
ability to read and assign employees from the spreadsheet. The Agency reasoned that by
reassigning Complainant to Tour 2, it was actually able to accommodate Complainant. The
Agency explained that the job requirements were not as substantial on Tour 2, and other
supervisors were available to assist Complainant.

The Agency determined that Complainant failed to set forth a prima facie case of disparate
treatment disability discrimination. The Agency noted that Complainant claimed that he was
treated less favorably than the employee who replaced him on Tour 3. However, the Agency
determined that the comparison was not similarly situated to Complainant given that
Complainant acknowledged the comparison was more capable of working with computer
programs. The Agency further determined that Complainant did not establish that age was a
determining factor in its reassignment decision.

Assuming arguendo Complainant established a prima facie case of disability and age
discrimination, the Agency determined that it articulated legitimate, nondiscriminatory reasons
for its actions. The Manager stated that Complainant was reassigned because he demonstrated
an inability to perform essential job functions such as assigning work, keeping track of his
employees, responding to calls on the workroom floor, and performing computer work.
According to the Maintenance Manager, there was only one other Maintenance Supervisor
assigned to Tour 3. In contrast, on Tour 2 there were two other supervisors and several
managers who could address situations. The Maintenance Manager asserted that the second
supervisor on Tour 3 was wearing out due to covering Complainant’s job responsibilities on a
regular basis. The Maintenance Manager further stated that when the second supervisor on
Tour 3 was absent, other supervisors had to be brought in to provide support.

Complainant attempted to establish pretext by pointing to the more favorable treatment of his
replacement on Tour 3 and by asserting that management’s concerns regarding safety were
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unfounded. Complainant stated that no safety reports had been issued to him. The Agency
rejected this argument noting it was unable to depend on Complainant to perform essential job
duties. The Agency reasoned that placing Complainant on a shift which provided greater
support was a practical approach. Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

As an initial matter, we assume without finding that Complainant is an individual with a
disability. Under the Commission’s regulations, an agency is required to make reasonable
accommodation of 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), 1630.2(p). A “qualified” individual with a disability is one who satisfies
the requirements for the employment position he holds or desires and can perform the essential
functions of that position with or without reasonable accommodation. 29 C.F.R. § 1630.2(m).

Upon review of the record, we find that the Rehabilitation Act does not require an Agency to
eliminate the essential functions of a position as a form of reasonable accommodation. Here,
Complainant argues that he should not have been reassigned from Tour 3 to Tour 2 as he had
not been cited in any safety reports and was able to accomplish all of his job duties except for
some computer work without reasonable accommodation. However, Agency officials stated
that Complainant was unable to respond to calls on the floor and that he forgot where he
assigned personnel. The Agency asserted that Complainant would also assign tasks to the
wrong people, transpose names on the assignment sheets, and schedule the incorrect person for
overtime. Additionally, the Agency stated that Complainant was unable to climb ladders and
did not grasp the training he received on computer programs.

The Agency pointed out that whereas Tour 3 only had one other Maintenance Supervisor, Tour
2 had two other supervisors and several managers available to assist Complainant and the job
requirements were less substantial. The Agency noted that the other supervisor on Tour 3 was
being strained by regularly covering Complainant’s job responsibilities and that when he was
absent, other supervisors had to be brought in to provide support. It is evident that the
Agency’s decision to reassign Complainant to Tour 2 enabled him to continue working in his
position even though he was not fully capable of performing his job duties independently.
Under these circumstances, we find that the Agency did not deny Complainant reasonable
accommodation. To the contrary, it provided a form of accommodation that was not required
by the Rehabilitation Act, namely assigning Complainant to a shift where there enough other
employees to perform the essential functions Complainant could not perform.

With regard to Complainant’s claim of age discrimination, we find that Complainant
established a prima facie case in light of the fact that the comparison is sixteen years younger
than him. However, in terms of the age discrimination claim and whether Complainant was
subjected to disparate treatment discrimination on the basis of his disability, it is clear from the
aforementioned reasons that the Agency articulated a legitimate, nondiscriminatory explanation
for reassigning Complainant to Tour 2. Complainant argues that the Agency’s concerns were
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unfounded given that he was not issued any safety reports. We find that this contention is not
sufficient to prove pretext and negate the Agency’s legitimate concerns.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

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.
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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 Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 1, 2015
Date