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

Equal Employment Opportunity Commission

Feb 7, 2013

0120121197 (E.E.O.C. Feb. 7, 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
(Great Lakes Area),
Agency.

Appeal No. 0120121197

Hearing No. 443-2011-00183X

Agency No. 1J-531-0015-11

DECISION

Complainant filed an appeal from the Agency’s final order dated December 8, 2011, finding no
discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In his complaint, May 6, 2011, Complainant alleged discrimination based on race (African
American), sex (male), and disability (left foot plantar fasciitis, nerve damage, and scar tissue)
when:

(1) On January 6, 2011, he was sent home because there was only work on the B team
which was against his medical restrictions and his request for Leave Without Pay
(LWOP) was entered as sick leave;

(2) On February 18, 2011, he was sent home because there was only work on the B
team which was against his medical restrictions;

(3) On February 18, 2011, he became aware that management discussed his
confidential medical restrictions with other employees; and

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(4) On an unspecified date, management did not send a letter to the Office of Workers’
Compensation Program (OWCP) so he could be paid for January 6, 2011, and
February 18, 2011.

Complainant also alleged in his complaint that on December 20, 2010, he was called in for
overtime to work as a forklift driver but instead he was placed on the A team as an unloader.
The record indicates that on May 23, 2011, the Agency dismissed this claim due to untimely
EEO Counselor contact, pursuant to 29 C.F.R. §1614.107(a)(2). The Agency stated that
Complainant contacted an EEO Counselor regarding the matter on February 7, 2011, which
was beyond the 45-day time limit set by the regulations.

Upon completion of the investigation of accepted claims (1) - (4), Complainant requested a
hearing before an EEOC Administrative Judge (AJ). On November 30, 2011, the AJ issued a
decision without holding a hearing, affirming the Agency’s dismissal and finding no
discrimination regarding claims (1) – (4). The Agency’s final order implemented the AJ’s
decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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 this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

Initially, upon review, we find that the Agency properly dismissed Complainant’s claim
concerning his work assignment of December 20, 2010, due to untimely EEO Counselor
contact. Complainant has not challenged this dismissal on appeal. Complainant did not
contact an EEO Counselor regarding the matter until February 7, 2011, which was beyond 45
days of the alleged incident. 29 C.F.R. § 1614.105(a)(1). Complainant failed to present
adequate justification to warrant an extension of the applicable time limit for contacting an
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EEO Counselor. Therefore, we find that the December 20, 2010 incident was properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).

Regarding claims (1) – (4), assuming arguendo that Complainant had established a prima facie
case of discrimination, the AJ determined that the Agency has articulated legitimate,
nondiscriminatory reasons for the alleged incidents. During relevant time period at issue,
Complainant was a Mail Handler Equipment Operator, M-05, at the Agency’s Milwaukee
Processing & Distribution Center. In 2004, Complainant sustained an on the job injury to his
foot. As a result, Complainant’s medical restrictions prevented him from performing the
essential functions of his Mail Handler Equipment Operator position, i.e., operating a jitney
(motorized equipment for moving mail that was operated from a standing position) and
performing other mail handler duties requiring prolonged standing, walking, bending, and
reaching, and the handling of heavy containers of mail and parcels weighing up to 70 pounds.
The record clearly indicates that since then, the Agency accommodated Complainant by
assigning him a limited duty job, i.e., working a forklift and intermittent unloading and
performing dismounted foot work for 20 minutes each work hour.

With regard to claim (1), Complainant’s supervisor denied Complainant was sent home on
January 6, 2011. The supervisor indicated that Complainant was assigned to the B team
because he failed to report to the service talk announcement on time. Specifically, the
supervisor stated that a day before, on January 5, 2011, all dock personnel, including
Complainant, were provided with a service talk announcement and agenda for a mandatory
service talk scheduled at 22:30 p.m. on the following day, January 6, 2011. Complainant,
however, failed to appear at the time when the job assignment was selected. Complainant does
not dispute this. The supervisor indicated that he assigned job selections at the relevant time
period based on his employees’ seniority. Since Complainant was not there at the time of the
job selections, he, thus, was by-passed and received the next available forklift position which
was on the B team which was within his medical restrictions.

Complainant claimed that the B team had more responsibility with travel through the dock on
the forklifts and had more boxes to move. Other than his mere assertions, there is no evidence
that Complainant was required to perform duties beyond his medical restrictions, cited above,
while assigned to the B team. Specifically, the Agency explained that there was no differences
between the A team and the B team in terms of duties, responsibilities, and use of equipment
and both were required to load and unload trailers, move mail containers to staging areas, and
perform other forklift duties as directed by supervisors. Specifically, the Agency indicated that
the primary function of the A team was to unload mail from inbound trailers arriving from
other postal facilities and the majority of this mail must be processed in-house at the facility.
The primary function of the B team was to load mail onto trailers departing the facility
destined for other post offices.

During the relevant time period at issue, stated the supervisor, Complainant had the
opportunity to stay and work on the forklift without having dismount, which was within his
medical restrictions. However, Complainant failed to work on the B team as he was instructed
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and walked off the workroom floor without authorization. Complainant requested 6.67 hours
of LWOP on that day which was approved. The supervisor denied that the requested LWOP
was entered as sick leave. There is no evidence in the record showing that Complainant was
paid sick leave as Complainant claimed.

With regard to claim (2), the supervisor again denied that Complainant was sent home during
the relevant time period at issue. Specifically, the supervisor stated that during the relevant
time period at issue, Complainant was again late to the job selection site and a senior
equipment operator was selected for the A team forklift position and Complainant was assigned
to the second forklift operator position on the B team. Complainant, however, refused to
accept the job and left work voluntarily. The Agency stated that on January 11, 2011, the
Agency Health Unit received Complainant’s doctor’s note dated January 7, 2011. Therein, the
doctor merely indicated “No B team, No unloading trailers,” and no lifting, pushing, and
pulling over 20 pounds. In response, on January 28, 2011, the Health Unit informed
Complainant that “No B team, No unloading trailers” restrictions were insufficient since they
were not in functional or physical terms. Thus, Complainant was informed to update the
foregoing restrictions. Complainant failed to do so. Complainant does not dispute this.

With regard to claim (3), the supervisor denied discussing Complainant’s confidential medical
restrictions with other employees. Complainant has not claimed that his supervisor disclosed
Complainant’s specific medical restrictions or medical diagnosis. Complainant has only
claimed that his supervisor made some generalized reference to Complainant’s restrictions
without revealing any details. We agree with the AJ that the generalized reference in this case
to the restrictions did not constitute a violation of the Rehabilitation Act.

With regard to claim (4), the supervisor acknowledged that he did not send a letter to OWCP
that Complainant had been sent home during the relevant incident dates, discussed above,
because it would have supported a fraudulent claim for OWCP benefits. Specifically, the
supervisor stated that Complainant was clearly offered work within his medical restrictions on
both occasions but he refused to work and left work on his own choice.

The Commission agrees with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reason for the alleged incidents. Upon review, we find that Complainant
failed to show that he was treated less favorably than a similarly situated employee under
similar circumstances. Assuming (without deciding) that Complainant was an individual with a
disability, we find that Complainant has not shown that assigning him to the B team on those
two occasions was in violation of his medical restrictions. Despite his claim, it is noted that
Complainant was not entitled to an accommodation of his choice, i.e., working solely on the A
team. Upon review, we find that Complainant failed to show that he was denied a reasonable
accommodation or that any Agency actions were motivated by discrimination.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.
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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.
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.

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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

February 7, 2013
Date