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

Equal Employment Opportunity Commission

Feb 21, 2013

0120114230 (E.E.O.C. Feb. 21, 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
(Southeast Area),
Agency.

Appeal No. 0120114230

Agency No. 4K-230-0164-10

DECISION

On September 1, 2011, Complainant filed an appeal from the Agency’s August 5, 2011 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. and 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales, Service and
Distribution Associate at the Agency’s Great Bridge Post Office in Chesapeake, Virginia. On
August 23, 2010, Complainant filed (and amended several times) an EEO complaint alleging
that the Agency discriminated against him on the bases of race (African-American), disability,
and in reprisal for prior protected EEO activity when:

1. on May 5, 2010, his request for light duty was denied;
2. on November 15, 2010, he was disciplined;
3. his request for a schedule change for December 31, 2010, was denied; and
4. on February 7, 2011, he was issued a Letter of Warning for Failure to Follow
Instructions.

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
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Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b).

In its decision, the Agency dismissed the claim involving discipline on November 15, 2010,
for failing to state a claim because Complainant admitted he was only counseled about being
absent, and no discipline was in fact issued. The Agency further found that Complainant was
denied a schedule change for December 31, 2010, because there were already enough
employees reporting to work at the time he desired to come in and that he was issued the Letter
of Warning for failing to properly scan two items. Finally, with regard to the denial of light
duty, the Agency claimed that there was simply no work available within the restrictions
Complainant presented in May 2010, and when his restrictions were modified in July 2010,
notably eliminating the requirement that he not be exposed to increased stress, light duty work
was provided. The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. This appeal followed.

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 if 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., 531) U.S. 133.143 (2000); St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Assuming for the sake of argument that Complainant established a prima facie case of
discrimination on all of the alleged bases, we find that the Agency articulated legitimate and
non-discriminatory reasons for denying Complainant a schedule change on New Year’s Eve
day and for issuing him a Letter of Warning.1

1 We note that Complainant grieved the Letter of Warning, and it was resolved that the Letter
of Warning would be removed from his official personnel file after sixty days.
We also find that no discipline was issued to
Complainant in or around November 15, 2010. With regard to the denial of light duty
between May and June 2010, the record contains evidence that employees were routinely
granted light duty when work was available within their restrictions and denied it when
productive work was unavailable. Complainant presents no evidence that this explanation is
unworthy of belief. Finally, we are not persuaded by the evidence of record that had the
Agency offered Complainant work within his then restrictions, he would have been able to
perform the essential functions of his position. Thus we find that he was not denied reasonable
accommodation within the meaning of the Rehabilitation Act.
0120114230

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As Complainant elected not to request a hearing, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing; therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. For the reasons set
forth above, we AFFIRM the Agency’s final decision.

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
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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

February 21, 2013
Date