Cory C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jan 31, 2018

0120151334 (E.E.O.C. Jan. 31, 2018)

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

Cory C.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120151334

Agency No. 4J-630-0067-13

DECISION

On February 25, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 3, 2015, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. 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 Sales,
Services/Distribution Associate (SSDA) at the Sullivan Post Office, Sullivan, Illinois. On June
8, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against
him based upon disability (high blood pressure, asthma, heart disease and diabetes) when on
February 14, 2013, he was issued a Notice of Separation effective March 22, 2013.2

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 The Agency’s decision asserts that the complaint should be dismissed for failure to state a
claim in accordance with EEOC regulations at 29 C. F. R. §1614.107(a)(1). Specifically, the
Agency argues that Complainant failed to allege any action taken by management that resulted in
any harm since the Notice of Separation was expunged, Complainant received back pay and he
voluntarily retired. The Agency’s attempt to dismiss this complaint on the grounds of mootness
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After 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.
In accordance with Complainant’s request, 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.

Complainant appealed the decision and in EEOC Appeal No. 0120140728 (Nov. 5, 2014), the
Commission vacated the decision and remanded for the Agency to conduct a supplemental
investigation. Our previous decision found that the EEO investigation failed to adequately
address: (1) what specifically constituted the essential functions of the SSDA position; (2) which
particular essential functions Complainant was unable to perform; (3) whether Complainant was
denied a reasonable accommodation; (4) whether efforts were made to offer accommodations
that could be effective; (5) whether attempts were made to restructure the position or search for
vacant positions to which Complainant could reasonably have been reassigned. Our previous
decision ordered the Agency to conduct a supplemental investigation to develop an adequate
factual record regarding Complainant’s denial of a reasonable accommodation claim. The
Agency obtained supplemental information that addresses these issues, and issued a new final
Agency decision, from which Complainant filed this appeal.

FACTUAL BACKGROUND

Complainant asserts that he informed his supervisor (S1) of his medical condition and provided
medical documentation as soon as he arrived at the Sullivan Post Office in August 2012 and that
he never received any accommodation to perform his duties. However, aside from
Complainant’s bare assertion, the record is devoid of evidence that he alerted any Agency
official of his medical condition until approximately, October 2, 2012.3 The record contains a
note from Complainant’s physician (P1) dated October 2, 2012 indicating, in pertinent part that
Complainant has:

severe medical conditions including diabetes, Hypertension,
asthma, history of CDP, and severe morbid obesity. Due to these
conditions, he would be unable to lift greater than 15 lbs, walk,
stand, crawl, kneel, bend, climb, and/or run for any extended
period of time. He could also not tolerate excessive heat, cold,
humidity and/or exposure to dust or fumes that could worsen his
lungs.

was discussed, and rejected, in EEOC Appeal No. 0120140728 (Nov. 5, 2014). Since the
Agency, nevertheless, reached the merits of Complainant’s claim, we will not review this new
procedural argument.
3 The record contains an undated statement from S1 indicating that he received medical
information from Complainant approximately one month after his arrival which would have been
approximately late September 2012.
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The record contains a second medical note dated October 15, 2012, which states in its entirety:
“To Whom It May Concern: It is upon my recommendations that the above patient:
[Complainant] is to NOT lift more than 15 pounds due to various medical issues. Thank you!”
(emphasis in the original).

The record evidence shows that on October 30, 2012, the Agency’s Reasonable Accommodation
Committee (DRAC) sent a letter to Complainant seeking information as to whether Complainant
was interested in a reasonable accommodation. The record is devoid of evidence establishing
that Complainant ever responded to the DRAC’s initial letter. Thereafter, on November 14,
2012, the DRAC sent Complainant a follow-up letter asking Complainant to contact them within
14 days. The record is devoid of evidence that Complainant ever contacted the DRAC or
responded to the November 14, 2012 DRAC letter. On January 30, 2013, the DRAC sent
Complainant a final letter notifying Complainant of his options and seeking a response in 14
days:

The following options are available to you:

1. You may identify a position in the Postal Service which is
suitable for voluntary reassignment. If you are interested in such a
reassignment, you must submit a written request and be medically
qualified for the position. I invite your suggestions about
reassignments to other vacant positions.

2. If you believe a form of reasonable accommodation will enable
you to perform essential functions of your position or aid in your
reassignment to a suitable position, you may provide me with a
written request for consideration by the District Reasonable
Accommodation Committee.

3. You may be eligible to apply for optional or disability
retirement. If you want more information and/or counseling
regarding this option, please contact the United States Postal
Service Human Resource Shared Services at 1-877-477-3273
Options #5.

4. You may resign from the Postal Service.4

The Functional Requirements List for the SSDA position includes heavy lifting and carrying,
pulling, pushing, reaching above the shoulder, walking, standing, and repeated bending. The
SSDA Standard Position Description (PD) indicates that an SSDA (1) performs distribution and

4 The record is devoid of evidence that Complainant ever responded to the DRAC’s January
2013 letter.
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a variety of sales and customer support services, and (2) maintains public relations with
customers and others. The PD also lists the functional requirements of an SSDA; heavy lifting
up to 70 pounds, heavy carrying 45 pounds and over, straight pulling, pulling hand over hand,
pushing, reaching above shoulder, use of fingers both hands are required (or compensated by use
of prosthesis), walking, standing, repeated bending, both legs required, operation of crane, truck
tractor or motor vehicle (if driving required), ability of rapid mental and muscular coordination
simultaneously. Our previous decision concluded that the PD was not sufficient in explaining
the essential functions of the SSDA position. The supplemental investigation added additional
testimonial and documentary evidence to the record which helped to better explain the essential
functions of the SSDA position.

Specifically, the Officer-in-Charge (OIC) described the essential functions of the SSDA position
to include: (a) assist customers at the window, (b) help with distribution in the morning, (c) help
with mail, and (d) get hold mail for customers. OIC also explains that the physical requirements
of the position include standing for long periods of time and lifting packages.

A fellow SSDA (C1), who often served in an acting supervisor role, explains that the essential
functions of the position include the following: (a) lift packages up to 70 pounds; (b) bend, lift,
and stand for long periods of time, (c) wait on customers, (d) walk back and forth, (e) do the box
section, and (f) sort mail. C1 adds that sorting mail is fast-paced to ensure that the Carriers get
on the streets as soon as possible.

The Acting Labor Relations Specialist/DRA (HR) testified that the essential functions of the
SSDA position were to: (1) work the window, including selling stamps and money orders, taking
parcels over the counter, and retrieving express mail; (2) conduct dispatch; (3) perform
distribution, including separating mail to routes and post office boxes; (4) scheme qualify, which
involved sorting mail to routes; and (5) work the mail, which involved scanning parcels. HR
also explains that the physical requirements of the SSDA position includes pushing and pulling
equipment with mail and parcels, lifting bundles of mail and parcels, and standing at the window
to wait on customers. HR affirmed that Complainant had to lean on a table to complete a task,
and that his restriction of not being able to stand longer than a minute without running out of
breath kept him from completing his tasks. She further averred that it would take Complainant
an hour to perform a thirty-minute task, noting that it took Complainant much longer to retrieve
held mail because he would have to sit and rest (for 5-10 minutes) between leaving and returning
to the customer counter. HR further affirmed that Complainant received help every day with
most of his tasks because he could not complete them in a timely manner. HR also states that it
took Complainant an extremely long time to complete any task, which created an undue burden
on the Postal Service because other employees would have to be paid to perform Complainant’s
work.

On February 14, 2013, S1 issued Complainant a Notice of Separation (effective on March 22,
2013) due to Complainant’s inability to perform the duties of his bid position. In the Notice, S1
further indicated that he had communicated with the DRAC regarding his concerns after
receiving medical documentation about Complainant’s condition, that the DRAC sent a letter to
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Complainant indicating that it appeared unlikely that Complainant would be able to perform the
essential functions of his bid job due to his medical condition, and offering him the options of
identifying a job for voluntary reassignment, requesting an accommodation by written request,
applying for disability retirement, or resigning from the Postal Service. 5

On March 19, 2013, S1 sent a letter to Complainant’s union representative (U1) indicating that:
(1) he had worked with Labor Relations since Complainant transferred to his station; (2) about a
month after his arrival, Complainant submitted a note from his doctor stating that he needed to
lean on a table and could not stand longer than a minute; (3) although it usually took 30-45
minutes to put up box mail, Complainant would take two hours to do so; (4) Complainant could
not perform distribution effectively; (5) Complainant worked the window until four customer
complaints were filed against him; (6) Complainant took five minutes to walk from the window
to the back of the office to pick up hold mail; (7) after meeting with Labor Relations they
decided to issue a Letter of Separation because Complainant was causing the Postal Service to
use more hours due to scheduling additional clerks; and (8) when he asked Complainant why he
did not respond to the letters from the DRAC Complainant responded that he was waiting for his
medical disability.

On May 3, 2013, a Step-2 grievance settlement placed Complainant back in active status
effective May 4, 2013, paid Complainant 20 hours of sick leave and 20 hours of leave without
pay from March 23, 2013 through May 3, 2013, and allowed Complainant to use a combination
of sick leave, annual leave, and leave without pay until his disability retirement was approved or
not approved, his medical restrictions changed, or one year of continuous leave without pay was
used.

On May 3, 2013, S1 advised Complainant (in writing) that the Notice of Separation had been
expunged and that Complainant was to report to work on May 4, 2013. Complainant instead
chose to retire from the Agency, effective on July 16, 2013.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal

5 In a March 5, 2013 letter, P1 indicated that “[Complainant] has asthma and has some
difficulties at work. He is able to sit intermittently a 1/2 hour per day. He is able to walk
intermittently for 2 hours per day. He is able to bend and stoop at least l hour per day
intermittently. Twisting, he states that he can do at least 4 hours intermittently, potentially 8
hours. He is able to push and pull at least 1 hour per day intermittently. He is able to do simple
grasping and fine manipulation at least 8 hours a day intermittently and is able to reach above his
shoulder for more than an hour intermittently.”
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determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

We assume for the purposes of this decision that Complainant is an individual with a disability,
within the meaning of the Rehabilitation Act. We agree with the Agency, that Complainant has
failed to establish that he is qualified to perform the essential functions of his SSDA position and
has not identified or requested any accommodation that would allow him to perform the essential
functions.

The “essential functions” are the most important job duties, the critical elements that must be
performed to achieve the objectives of the job. Removal of an essential function would
fundamentally change a job. If an applicant or employee cannot meet a specific qualification
standard because of a disability, the ADA requires that the employer demonstrate the importance
of the standard by showing that it is “job-related and consistent with business necessity.” See 29
C.F.R. §§ 1630.10 and 1630.15(b)(1) (2007); See also Enforcement Guidance on the Americans
with Disabilities Act: Applying Performance and Conduct Standards to Employees with
Disabilities (Enforcement Guidance - PCS) (Sept. 25, 2008). This requirement ensures that the
qualification standard is a legitimate measure of an individual’s ability to perform an essential
function of the specific position the individual holds or desires. Enforcement Guidance - PCS
(Sept. 25, 2008).

The undisputed record shows that Complainant took at least twice as long as any other employee
to complete most of his tasks. C1 asserts that Complainant was physically unable to do most of
his duties due to his medical conditions. C1 also states that Complainant would get out of breath
very easily and need to sit down and rest for long periods of time. Complainant was also unable
to stand for long periods of time. C1 further notes that there were not many duties in the clerk
craft where sitting was an option. Even though Complainant was given things to do while sitting
and permitted breaks when standing, he could not perform most of his duties. In addition, she
notes that there had been several complaints from customers who had to wait on him, and that S1
tried to keep him from the window due to the number of complaints.
The undisputed record shows that an essential function of the SSDA position was to complete
the various specified duties at a fast pace in order to serve window customers without complaints
and to permit the carriers sufficient time to complete their routes each day. The record shows
that Complainant’s pace of work was significantly slower than his co-workers and that he
received numerous complaints by window customers. We find that allowing Complainant to
work at a much slower pace than his co-workers would have significantly disrupted customer
service and significantly decreased the effectiveness of the carrier’s timely delivery of the mail.
See Complainant v. U.S. Postal Serv., Appeal No. 0120070751 (March 25, 2009); Complainant
v. U.S. Postal Service, EEOC Appeal No. 0120090214 (Feb. 26, 2009); Complainant v. U.S.
Postal Service, EEOC Appeal No. 0120070751 (Mar. 25, 2009).
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The Rehabilitation Act does not require an employer to lower or substantially modify production
standards to accommodate an individual. See Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice
No. 915.002, p. 6 (Oct. 17, 2002). We also note that the record is devoid of evidence that
Complainant ever identified a specific reasonable accommodation that would allow him to carry
out the essential functions of his position and failed to respond to the various requests from the
DRAC. Since Complainant never requested or identified a reasonable accommodation, we find
that he was not qualified, with or without an accommodation to perform the essential functions
of his SSDA position.

Because Complainant did not identify any accommodations that would have enabled him to
perform the essential functions of his position, the only possible accommodation in this case
would have been to reassign Complainant to another position. EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act,
No. 915.002 (revised Oct. 17, 2002); see also Interpretive Guidance on Title 1 of the Americans
with Disabilities Act, Appendix, to 29 C.F.R. Part 1630.2(o). Complainant has an evidentiary
burden in such reassignment cases to establish that it is more likely than not that there were
vacancies during the relevant time-period into which he could have been reassigned.
Complainant can establish this by producing evidence of specific vacancies. See Hampton v.
U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002). In the alternative, Complainant
need only show that: (1) he was qualified to perform a job or jobs which existed at the agency,
and (2) there were trends or patterns of turnover in the relevant jobs that made a vacancy likely
during the time-period. Id.
The record is devoid of evidence that there was a vacant, funded position for which Complainant
was qualified to be reassigned during the relevant time-period.6 In fact, numerous Agency
witnesses testified that there were no other positions that Complainant could do that would have
been easier on him. The supplemental investigation provided the position descriptions of the
various other jobs available which were all shown to be more physically rigorous than the SSDA
position. Upon review of the record, we find insufficient evidence that Complainant could
perform the essential functions of his SSDA position or another vacant position. Additionally,
we note that Complainant failed to present any arguments in support of his appeal. Thus, we
conclude that the Agency properly found that Complainant failed to establish discrimination as
alleged.

CONCLUSION

Based on a thorough review of the record we AFFIRM the Agency’s final decision finding that
Complainant did not establish that he was discriminated against as alleged.

6 On Complainant’s disability application, he states that he cannot perform Clerk or Carrier
duties.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 31, 2018
Date