0120123099
03-19-2015
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120123099
Hearing No. 450-2012-00017X
Agency No. 4G-752-0128-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 21, 2012, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Agency's final order which fully implemented the Administrative Judge's (AJ) decision finding that Complainant failed to demonstrate that he was subjected to discrimination is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a substitute Rural Carrier Associate at the Agency's facility in Greenville, Texas. Complainant was originally hired by the Agency in January 2009. During the hiring process, Complainant disclosed to his supervisor that he had suffered injuries as a result of military service which caused him to be a slow learner and forgetful. Complainant was given additional training and allowed to take leave whenever he needed it. Nevertheless, he was terminated from his position on January 19, 2010, for failing to report to work. He filed an EEO complaint which management was aware of, and he returned to work on December 6, 2010, during the pendency of his EEO complaint, because management realized that there had been a procedural error made with regard to his termination.
The day before Complainant's return to work, December 5, 2010, his attorney sent a letter to the Agency's attorney stating, among other things, that:
his supervisors are to have no discussions with him concerning his EEO case. This includes any discussion which could be construed as settlement negotiations, including discussion on back pay, compensatory damages, attorney fees, work schedules training, and/or reasonable accommodation.
Complainant's attorney wrote that all discussions should be directed to him. The Agency's attorney replied that management would not abdicate its decision-making prerogatives with regard to work schedules. He also requested information regarding accommodations that Complainant might need. Complainant's attorney did not respond.
Complainant returned to work on December 6, 2010, and was assigned the route that he had previously worked. He trained on December 6, 7, 8, and 9, 2010. He worked the route on December 11, 2010, and then trained again on December 16 and 17, 2010. He worked with C1, the person for whom he would be substituting. C1 explained the route and showed Complainant where things belonged. Complainant was given a map of the route with highlighting, and on several of his training days he delivered half of the route. C1 or another trainer delivered the other half of the route. Complainant worked with C1 again on December 18, 24, and 27, 2010. He was next assigned to work the route on January 8, 2010, as C1 was scheduled for leave during the weeks of January 8 and January 15, 2011.
Complainant was scheduled to work on January 12, 13, and 14, 2011, and again on January 15, 18, and 19, 2011. C1 reminded him to check the schedule because he was scheduled to work the next few weeks. Complainant stated something to the effect of "that's a lot" and that he "might have a VA appointment." Complainant testified that his supervisor responded to the effect that he "knew what he signed up for," and that there was no one else to cover for him. The supervisor testified however, that Complainant never said anything to him about the schedule, and never asked for leave or mentioned any VA appointments. The supervisor testified that in the past Complainant had requested time off for VA appointments, and that it had always been granted. He stated that at this time, Complainant never mentioned or requested leave for a VA appointment or for any other reason. Complainant testified that he never requested leave, and never submitted any medical documentation concerning the number of days he could work. There was no evidence presented that the Complainant told his supervisor that he was limited in the number of days he could work.
Complainant worked on January 12, 2011, but after returning from delivering his route, he taped a letter of resignation and his ID badge to the supervisor's computer. The letter read:
Can't take it no [sic] more. To [sic] much pressure, to [sic] much stress, can't get out the [sic] office fast enough. Can't get back on time before dark. I have punished my truck. I have a cut in the oil pan from ice on the highway. My brakes are metal on metal. I might not make it home. My stress is so high I have no feeling in my bobie [sic] anymore. Can't stop the voices in my head. Has anyone died in here? Something is making me crazy here. Can't do it no [sic] more. I'm sorry this is my last day. I resign my position as rural carrier as of 01/12/2011. My job is to [sic] stressful and I am under to [sic] much pressure.
On March 23, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability (Brain injury/Posttraumatic Stress Disorder (PTSD)) and reprisal for prior protected EEO activity when on or about January 12, 2011, he was forced to resign because the Agency failed to accommodate his disability.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. The AJ held a hearing on May 2, 2012. The AJ found that, assuming Complainant met the definition of being an individual with a disability, the record showed that he never requested an accommodation with regard to the work schedule. Complainant testified that he said something to the effect that it was "a lot," which is refuted by the supervisor. The AJ noted that while an employee is not required to use exact language in requesting a reasonable accommodation, they must say something that would put a supervisor on notice that an accommodation is being requested. The AJ found that there was no documentation which stated that Complainant's condition required him to work no more than a certain number of hours per week, and no evidence that he ever told his supervisor that he could not work over a certain number of days per week. There was also no evidence that Complainant requested leave or leave without pay during the period in questioned even though the record showed that he had always been allowed time off in the past. Moreover, the record showed that when the Agency asked Complainant's representative what if any reasonable accommodation was needed, no reply was received.
Additionally, the AJ found that Complainant failed to demonstrate that he was subjected to retaliation as he was hired to substitute for employees who were absent from the office and he was scheduled to work for C1 on the days she was out, i.e., he was performing the duties he was hired to perform. Finally, the AJ found no nexus between Complainant's resignation and his protected EEO activity; and that the Agency was not responsible for his resignation.
CONTENTIONS ON APPEAL
Complainant did not provide a brief on appeal. The Agency argues that the AJ's decision should be affirmed as Complainant failed to show that he was not granted a requested reasonable accommodation, and that there was no evidence which showed a retaliatory nexus existed between Complainant's protected EEO activity and the Agency allegedly not accommodating him.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the final Agency order. We agree with the AJ that even if we assume arguendo that Complainant established a prima facie case of disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant failed to request an accommodation or make known that a reasonable accommodation was needed. We agree that Complainant has not shown that the Agency's articulated nondiscriminatory reasons were pretext for discrimination. Further, with respect to Complainant's allegation that he was subjected to retaliation, we agree with the AJ's finding that Complainant failed to show that a nexus existed between his protected EEO activities and the Agency's actions here; therefore, we do not find that he was subjected to retaliation. The record shows that, prior to his resignation, Complainant was doing a good job and was performing the job that he was hired to do.
Further, to the extent that Complainant is raising a constructive discharge claim, we note that the central question in a constructive discharge case is whether the employer, through unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a Complainant must show in order to establish a claim of constructive discharge. They are: (1) a reasonable person in the Complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the Complainant created the intolerable working conditions; and (3) the Complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Upon review, we find that Complainant failed to show that his working conditions were intolerable. In fact, the record shows that the Agency responded to all of Complainant's requests and in no way made his working conditions difficult. For example, there was no evidence that showed that Complainant was denied any requests for leave. As such, we conclude that Complainant did not establish that his resignation constituted a constructive discharge.
Accordingly, we find that the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record. The Agency's final order 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. 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
_3/19/15_________________
Date
2
0120123099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123099