Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jul 15, 2015

01-2013-2887-0500 (E.E.O.C. Jul. 15, 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
(Capital Metro Area),
Agency.

Appeal No. 0120132887

Hearing No. 531-2012-00270X

Agency No. 4K-200-0007-10

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s June 21, 2013 final order 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., 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.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Post Office in Fort Washington, Maryland. Complainant suffered an on-the-job
injury in May 2005, and was subsequently placed on limited duty. Complainant remained on
limited duty until September 2009, when he was cleared to return to work an eight-hour, five-
day a week schedule. The Postmaster instructed Complainant to submit a light duty request
with updated medical documentation since he was no longer eligible for limited duty.
Complainant did not respond.

On September 25, 2009, the Postmaster instructed Complainant to not report to work the next
day unless he had submitted a light duty request with updated medical documentation.
Complainant subsequently submitted the light duty request and the requested medical
documentation on September 30, 2009. Complainant’s medical documentation indicated that
0120132887

2
he had medical restrictions which included: three hours driving; no more than one hour of
intermittent standing, climbing stairs, bending, and reaching above shoulders; one to two hours
of intermittent walking, twisting, and pushing/pulling; four to six hours of working in the cold
or heat; and eight hours of simple grasping and fine manipulation. Complainant was placed on
light duty.

On or about October 5, 2009, the Postmaster informed Complainant that his hours would be
reduced due to a decrease in workload throughout the facility. Complainant verbally requested
a transfer to another station, to allow him to remain in full-time status. Complainant’s
supervisor (S1) began looking for alternative assignments within the carrier craft. On October
8, 2009, Complainant’s hours were changed from eight hours a day, five days a week to four
hours a day, five days a week, and his work hours were 2:00 p.m. to 6:00 p.m. Complainant
was provided assignments based on available work. On a few occasions, Complainant only
worked two hours because there was insufficient work available within his restrictions. On
several occasions in November 2009, Complainant was sent home early after receiving an
assignment that exceeded his restrictions. On those days, Complainant performed the work
within his limitations, and other employees completed the remainder of the assignments. From
October 2009 through April 2010, Complainant used a combination of annual and sick leave as
a result of the reduction in hours.

On September 23, 2009, a temporary supervisor (TS) needed some boxes removed from her
office. TS saw Complainant sitting on a stool, and Complainant claimed that she asked him to
use his big arms/muscles to help move boxes. Complainant informed her that he had
restrictions. In addition, on September 28, 2009, TS issued Complainant a Letter of Warning
for his failure to be regular in attendance. On October 6, 2009, Complainant wrote a letter to
the Postmaster expressing that he believed that TS acted inappropriately and unprofessionally.
The Postmaster discussed the matter with TS and instructed her to only communicate with
Complainant in a professional manner.

Around October 29, 2009, Complainant and a co-worker (CW1) were involved in a verbal
altercation. Complainant claimed that CW1 had said something offensive about him previously
and witnesses reported that Complainant directed insensitive, racial comments at CW1. In
addition, witnesses stated that Complainant yelled and screamed profanities at CW1 and
pointed his fingers in CW1’s face in a threatening manner. Management investigated the
incident and determined that Complainant had become hostile and violent on the workroom
floor and intimidated another employee who reported the incident to management. As a result,
the Customer Services Supervisor (S2) issued a Notice of 14-Day Suspension for Unacceptable
Conduct (Violation of the Zero Tolerance Policy).

On or about November 4, 2009, Complainant was unable to report for duty due to car
problems and used annual leave. The next day, S2 requested documentation in support of
Complainant’s claim that his car needed repairs. On March 26, 2010, Complainant decided to
leave work early after he got a headache and suffered dizziness. Complainant requested a
form allowing him to leave work based on a job-related injury. TS informed Complainant that
0120132887

3
he would need to submit medical documentation substantiating his incapacity and that he would
be in a non-pay status until he did so. Complainant later submitted a workers’ compensation
claim claiming that his stress, depression, and anxiety attacks were the result of the Agency’s
abusive behavior. Complainant was charged leave without pay (LWOP) for March 26, 2010,
as he had exhausted his sick leave.

On January 26, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), color (Black),
disability, age (50), and in reprisal for prior protected EEO activity when:

1. On September 23, 2009, he was subjected to verbal sexual harassment;

2. On October 8, 2009, his work hours were reduced; and

3. On November 28, 2009, he was issued a Notice of Suspension of 14 Days for
Unacceptable Conduct.

On April 5, 2010, Complainant amended his complaint to allege that the Agency discriminated
against him and subjected him to a hostile work environment based on disability and in reprisal
for prior protected EEO activity when:

4. On March 25, 2010, his work hours were reduced from six to four hours per
day;

5. He was not provided a light duty assignment in compliance with his medical
restrictions; and

6. On March 26, 2010, he was charged leave without pay (LWOP).

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on June 6, 2013.

In his decision, the AJ initially determined that, assuming arguendo that Complainant was a
qualified individual with a disability, the Agency had not failed to accommodate Complainant.
The AJ found that Complainant was provided an effective accommodation at all times which
allowed him to perform a number of the essential functions of his job. Complainant
complained when the tasks he was assigned went beyond his medical conditions, and the
Agency complied with these requests. The record indicated that while on light duty
Complainant was given a number of assignments as an attempt to accommodate his time-
specific limitations. These included a tour of six hours that encompassed four hours of
collection and one and one half hours of delivery, but after one week Complainant stated he
0120132887

4
could no longer complete the tour. The Agency provided Complainant with assignments of
available work in accordance with his medical restrictions, but management was unable to
identify enough available tasks within Complainant’s medical restrictions in order for
Complainant to have an eight-hour work day within the immediate Postal facility.

In addition, the AJ found that Complainant failed to identify any vacant, funded position which
he was qualified for and that could be performed with or without reasonable accommodation
and there is no evidence of one in the record. Further, Complainant did not articulate, or
provide any evidence of an accommodation that would enable him to perform the essential
functions of his current position. Instead, Complainant alleged that the Agency failed to make
a good faith effort to accommodate him. The AJ noted that the Rehabilitation Act does not
require the Agency to create a job as a form of reasonable accommodation. As a result, the AJ
concluded that Complainant failed to show that the Agency failed to accommodate his
disability.

Next, with respect to Complainant’s sexual harassment claim, Complainant claimed that he
found the comment about his "big arms" to be unwelcome and that he notified the Postmaster
that TS’s comment was offensive. The AJ found that the alleged comment was not sufficiently
severe or pervasive to create a hostile work environment, as it was simply a one-time reference
and request for assistance in an office. Further, the AJ noted that the Agency reprimanded TS.

Finally, Complainant claimed that he was subjected to a hostile work environment when he
was told to report to work at 2 p.m. instead of 12 p.m., he was provided assignments that
exceeded his medical restrictions, he was issued a notice of suspension for unacceptable
conduct, he was given a letter of warning for attendance, he was required to continually inform
his supervisor about his medical restrictions, he was asked to provide evidence of necessary
car repairs, he was charged LWOP, he was not provided documentation related to his request
for reasonable accommodation, and he did not have a tour assignment next to his name on the
employee roster. The AJ concluded that the Agency articulated legitimate, nondiscriminatory
reasons for its actions and Complainant presented no evidence that those reasons were
pretextual. In particular, with respect to the 14-Day Suspension, Complainant averred that he
threatened a co-worker during a dispute in violation of the Agency's Zero Tolerance Policy.
The Agency asserted that Complainant was suspended because his conduct in voicing threats to
CW1 escalated the situation. When offered an opportunity to explain his conduct Complainant
could not.

The AJ concluded that Complainant failed to establish that any of the Agency’s actions were
based on discriminatory or retaliatory animus. As a result, the AJ found that Complainant had
not been subjected to discrimination, reprisal, or a hostile work environment as alleged. The
Agency subsequently issued a final order fully implementing the AJ’s decision. The instant
appeal followed.

0120132887

5

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency as he claims that material facts remain in dispute. Complainant argues that he has
established that he was denied reasonable accommodation and subjected to discrimination and
reprisal. Complainant alleges that the Postmaster became a bully and retaliated against him
when he resisted the Postmaster’s request that he file for light duty. Further, Complainant
argues that the Agency intensified its efforts to have him increase production or stay home
following the change in his status from limited to light duty creating a hostile work
environment. Accordingly, Complainant requests that the Commission reverse the final order.

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.
When a party moves for summary judgment, such as the Agency did here, the non-moving
party's opposition must consist of more than bare assertions, general denials, conclusory
allegations or mere suspicion and must be supported by affidavits or other competent evidence
setting forth specific facts showing that there is a genuine issue for hearing. See Celotex

, 477
U.S. at 324. Complainant did not show that there was a genuine issue of material fact in this
case, and his arguments on appeal do not undermine the AJ's determination that, even
assuming all facts in his favor, a reasonable fact finder could not find in his favor, as explained
below.
Denial of Reasonable Accommodation

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 will assume without deciding (for the
purposes of this decision) that Complainant is a qualified individual with a disability.
Complainant has not shown that the Agency denied him reasonable accommodation.
Specifically, Complainant submitted a request for light duty along with medical restrictions
after his workers’ compensation case was closed. ROI, at 434. Complainant reported each
day and was provided auxiliary assignments within his restrictions, which consisted of
approximately four hours of work per day. Id. at 434-35. Complainant was advised that as
his restrictions became less restrictive, his hours and available duties would increase. Id. at
434. The record reflects that management attempted to “make work” for Complainant by
0120132887

6
unofficially cobbling together duties that were within his restrictions, but the Rehabilitation Act
does not require the Agency to make work for employees. See Complainant v. U.S. Postal
Serv., EEOC Appeal No. 0120111093 (Sept. 23, 2013); Genereux v. U.S. Postal Serv.

,
EEOC Appeal No. 0120054254 (Jan. 30, 2007) (employer not required to create a job for
disabled employee or transform its temporary light duty assignments into permanent jobs to
accommodate an employee's disability).
In addition, Complainant sought reassignment to a position where he could work a full eight-
hour day. Complainant has an evidentiary burden in such cases to establish that it is more
likely than not (a preponderance of the evidence) that there were vacancies during the relevant
time period into which he could have been reassigned. Complainant can establish this by
producing evidence of particular vacancies. See Hampton v. U.S. Postal Serv.

, EEOC Appeal
No. 01986308 (July 31, 2002). Complainant failed to provide any evidence that there was a
vacant, funded position for which he was qualified to be reassigned to during the relevant time
period. Thus, the Commission concludes that the AJ properly found that Complainant failed to
show that he was denied a reasonable accommodation.
Sexual and Non-Sexual Harassment/Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a
statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based
on his statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc.

, 510 U.S. 17, 21 (1993).
Upon review, the Commission agrees with the AJ that Complainant did not establish that he
was subjected to sexual harassment by TS. Our review of the record, moreover, supports the
AJ’s determination that the remark at issue was a one-time incident and was not sufficiently
severe to trigger a Title VII violation. Moreover, the record supports a finding that the
Agency responded to Complainant’s harassment allegation in an immediate and appropriate
manner. The record reflects that as soon as Agency management became aware of TS’s
comment, the Postmaster questioned TS and instructed her to only communicate with
Complainant in a professional manner. There is no evidence in the record that any similar
conduct occurred thereafter. Thus, nothing in the record shows that the Agency's corrective
actions were insufficient or inappropriate. Accordingly, the Commission finds that
Complainant’s sexual harassment claim must fail.

Finally, with regard to Complainant’s claims overall hostile work environment claim and
construing the evidence in the light most favorable to Complainant, the Commission agrees
0120132887

7
with the AJ that Complainant has not shown he was subjected to a hostile work environment.
Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. For example, as discussed above, Complainant’s work
hours were reduced and modified based on the lack of available work within his medical
restrictions. ROI, at 434, 450. As to the Notice of 14-Day Suspension, S2 affirmed that
Complainant initiated an altercation with another employee and continued even when asked to
stop. ROI, at 485. Witnesses reported that Complainant approached CW1 in a hostile,
threatening, and disrespectful manner and used profanity and insensitive ethnic language.
ROI, Exs. 7 – 10. As a result of Complainant’s hostile and threatening outburst, S2 issued
Complainant the Notice of 14-Day Suspension. ROI, Ex. 10. Regarding the March 26, 2010,
LWOP incident, Complainant was initially placed in a non-pay status pending documentation
because of a questionable unscheduled absence. ROI, at 446. By the time Complainant
submitted medical documentation in support of the absence, he had exhausted all of his sick
leave and was therefore charged LWOP. Id

. at 448. The Commission concurs with the AJ's
determination that the record does not show that the Agency subjected Complainant to a
discriminatory or retaliatory hostile work environment.

CONCLUSION
The Commission finds no basis to disturb the AJ's summary judgment decision, and we
AFFIRM the Agency’s final order.

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
0120132887

8
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
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
July 15, 2015