Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 19, 2013

0120111767 (E.E.O.C. Sep. 19, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120111767

Hearing No. 532-2010-00092X

Agency No. 4C-440-0201-09

DECISION

On January 23, 2011, Complainant filed an appeal from the Agency’s final decision 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. 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full Time City
Carrier at the Cleveland-South Euclid Branch in Cleveland, Ohio. On October 20, 2009,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (Asian) and in reprisal for prior protected EEO activity when:

1. his Manager and Supervisor instructed him to discuss his medical restrictions,
including his Limited Duty status, while on the workroom floor;

2. his Manager approved changes to his bid assignment which required him to
work beyond his medical restrictions; and

3. his scheduled was not changed from 8:30 AM - 5:00 PM to 7:30 AM – 4:00
PM.

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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 EEOC
Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his
request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he was subjected
to an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v, Aikens,
460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981).

Claim #1 (Discussion of Medical Restrictions)

The gravamen of Complainant’s claim seems to be that Agency management inappropriately
forced Complainant to reveal confidential medical information in the presence of co-workers
on the work floor. The evidence adduced by the Agency shows that this never happened. The
Agency’s witnesses are in agreement that during the period in question, Complainant did not
work on the workroom floor where the other carriers sorted mail in preparation for delivering
their mail routes. Report of Investigation (ROI). Affidavit B at 2. Because of his medical
restrictions, Complainant did not deliver mail. His duty station was near the back door away
from the work floor where his principal duty was to issue and retrieve scanner equipment used
by carriers in the course of delivering their routes. Id. In any event, the Agency’s witnesses
not only deny that Complaint was interrogated about his medical restrictions on the workroom
floor, they deny ever requesting Complainant to make any oral statement about his medical
restrictions in any location. One Agency witness acknowledges requesting that Complainant
complete a U.S. Department of Labor Form CA-17 “Duty Status Report,” but there is no
evidence corroborating Complainant’s claim that he was forced to publicly discuss his medical
restrictions.

Claim #2 (Work Beyond Medical Restrictions)

Further, Complainant has adduced no evidence that he was ever forced to perform work that
exceeded his medical restrictions. Indeed, nowhere in the evidence submitted by Complainant
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is there any information about the nature or extent of his medical restrictions. Nor does
Complainant testify about the nature of the work he claims to have performed in contravention
of his medical restrictions. Without evidence on these issues, Complainant has failed to bear
his burden of proof.

Claim #3 (Failure to not Change Duty Hours)

Finally, the Agency explains that it did not change Complainant’s duty hours when it changed
the duty hours of most other carriers, because, although he was nominally a letter carrier,
during the relevant period, Complainant’s duties did not include actual delivery of mail. The
evidence shows that on January 30, 2010, the duty hours of most of the carriers in
Complainant’s facility were changed from 8:30 AM – 5:00 PM to 7:30 AM - 4:00 PM. ROI,
Affidavit E at 2. The Agency explains that this change was made to maximize the delivery of
mail in daylight, for the safety of carriers and also to facilitate earlier delivery of mail for the
convenience of customers. ROI, Affidavit D at 3. None of these considerations applied to
Complainant because he did not deliver mail. ROI, Affidavit E at 2. Accordingly, his schedule
was not changed. This is a legitimate, nondiscriminatory reason for the Agency’s actions.
Complainant has adduced no evidence that would support the conclusion that the Agency’s
reason for its action is a pretext designed to conceal discriminatory animus.

CONCLUSION

For the foregoing reasons, the Agency’s final decision 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,
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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
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

September 19, 2013
Date