0120150188
03-17-2017
Eric M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eric M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120150188
Hearing No. 430-2013-000248X
Agency No. 1K-271-0018-12
DECISION
On October 14, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 12, 2014, final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence in the record supports the Equal Employment Opportunity Commission Administrative Judge's (AJ) finding that the Agency did not deny Complainant a reasonable accommodation or subject him to disparate treatment on the bases of disability (plantar fasciitis) and age (62) when, from June 18, 2012 to September 22, 2012, his supervisor did not assign him to a set work area.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodial (Custodian) at the Agency's Greensboro Processing and Distribution Center in North Carolina. According to the position description, custodians perform manual labor in connection with maintenance and cleaning of the buildings and grounds of a postal facility. Complainant's first-level supervisor was the Supervisor, Maintenance Operations (S1).
Complainant had plantar fasciitis. According to Complainant, his medical restrictions were the following: "Try to limit the time and distance on my feet. Take brief periods of rest. Take meds when prescribed." Pursuant to an approved Family and Medical Leave Act claim related to his medical condition, Complainant was allowed to use leave for his medical condition and take rest breaks as needed.
Prior to 2011, custodians were assigned to set work areas. Complainant was assigned to areas "B" and "H." In 2011, S1 decided to rotate work areas because she thought that some of the custodians were being complacent about cleaning their assigned work areas. After S1 began rotating work areas, Complainant worked in a different area of the facility every day.
On June 18, 2012, Complainant and two other custodians (C1 - no disability, 61; C2 - no disability, 51) drafted a written request to be assigned to set work areas. Specifically, Complainant requested areas "B" and "H," C1 requested area "D," and C2 requested area "E." The request contained no other information. C2 left the written request on S1's desk. S1 did not respond to the request and Complainant, C1, and C2 continued to rotate work areas.
On November 27, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (plantar fasciitis) and age (62) when, from June 18, 2012 to September 22, 2012,2 S1 did not assign him to a set work area. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing and the AJ held a hearing on August 18, 2014.
On September 8, 2014, the AJ issued a decision finding no denial of reasonable accommodation on the basis of disability and no disparate treatment on the bases of disability or age.
Regarding denial of reasonable accommodation, the AJ found that Complainant did not establish by a preponderance of the evidence that any request he made to be assigned to a set work area constituted a request for reasonable accommodation. First, the AJ found that S1 did not receive the June 18, 2012, written request. Specifically, the AJ cited S1's testimony that she did not receive the written request. In addition, the AJ found that there was no evidence that Complainant, C1, or C2 followed up with S1 to confirm she had received the written request. Second, the AJ found that, even if S1 had received the written request, the written request was not a request for reasonable accommodation. Specifically, the AJ found that Complainant did not mention his medical condition in the written request. In addition, the AJ found that C1 and C2 requested to be assigned to a set work area as a personal preference, not as a reasonable accommodation. Third, the AJ found that any verbal requests Complainant made to be assigned to a set work area were not requests for reasonable accommodation. Specifically, the AJ cited conflicting testimony by Complainant and S1 about whether Complainant made any verbal requests to be assigned to a set work area; Complainant testified that he made verbal requests mentioning his medical condition, whereas S1 denied that Complainant made any verbal requests at all. In addition, the AJ cited C2's testimony that, although she overheard Complainant asking S1 to be assigned to a set work area, she did not hear him mention his medical condition when doing so. Fourth, the AJ found that Complainant did not proffer any medical documentation supporting his assertion that he needed to be assigned to a set work area because of his medical condition. Specifically, the AJ cited Complainant's testimony that he wanted an assignment to areas "B" and "H" because he was familiar with them. In addition, the AJ found that areas "B" and "H" were the largest work areas, which would appear to go against Complainant's medical restrictions requiring him to limit distance on his feet.
Regarding disparate treatment, the AJ found that S1 articulated a legitimate, nondiscriminatory reason for not giving Complainant an assignment to a set work area; namely, he did not make a request. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that S1's reason was a pretext for disability or age discrimination. Although Complainant identified two custodians (C3 - no disability, 49; C4 - no disability, 54) whom S1 assigned to set work areas, the AJ found that S1 did so because of requests from customers in those work areas who were satisfied with how they handled those work areas. The AJ found that Complainant did not proffer evidence showing that S1 acted with discriminatory animus.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal,3 Complainant contends that the AJ erred in finding no discrimination. Among other things, Complainant argues that that the AJ erred in finding that he did not verbally request a reasonable accommodation. As evidence of the AJ's error, Complainant cites his own hearing testimony that he asked S1 to assign him to a set work area to accommodate the problem with his feet, C2's hearing testimony that she overheard a conversation where he asked to be assigned to a set work area, and S1's hearing testimony about a conversation where Complainant stated his feet were hurting and she told him to take a rest break if he needed to. In addition, Complainant argues that the AJ erred in finding that S1 did not receive the June 18, 2012, written request. As evidence of the AJ's error, Complainant cites S1's affidavit testimony that she granted C2's written request to be assigned to a set work area and C2's hearing testimony that the June 18, 2012, written request was the only written request she submitted.
STANDARD OF REVIEW
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. Nat'l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B (Aug. 5, 2015).
ANALYSIS AND FINDINGS
On appeal to the Commission, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. See id. at Ch. 9, � VI.C. In this case, this means that Complainant has the burden of pointing out where and why the AJ's findings are not supported by substantial evidence. Cf. id. (pointing out that "[t]he appeals statements of the parties, both supporting and opposing the [AJ's] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ's] factual determinations are supported by substantial evidence").
Upon review, we find that substantial evidence in the record supports the AJ's finding that the Agency did not discriminate against Complainant on the bases of disability and age.
Regarding denial of reasonable accommodation, the evidence in the record supports the AJ's finding that Complainant did not make a request for reasonable accommodation. When an individual decides to request accommodation, he must let the agency know that he needs an adjustment or change at work for a reason related to a medical condition. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (as revised Oct. 17, 2002). The individual may use "plain English" and need not mention the Rehabilitation Act or use the phrase "reasonable accommodation," but must link his need for the adjustment or change at work with a medical condition. See id. As to the June 18, 2012, written request, nothing in the request linked Complainant's need to be assigned to areas "B" and "H" with a medical condition. ROI, at 86. As to Complainant's verbal requests, we emphasize that C2, who testified she overheard his requests, was specifically asked about the language he used and did not testify that he mentioned his medical condition. Hr'g Tr., at 28, 40-41, 46.
Regarding disparate treatment, the evidence in the record supports the AJ's finding that Complainant did not prove, by a preponderance of the evidence, that S1's reason for not assigning him to a set work area was a pretext for disability or age discrimination. The AJ credited S1's hearing testimony that she did not receive the June 18, 2012, written request. Complainant argues that the AJ erred in doing so and that S1 did in fact receive the June 18, 2012, written request. Even if we were to disbelieve S1's hearing testimony that he did not receive the June 18, 2012, written request, our rejection of S1's proffered reason does not compel us to find disability or age discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993) (rejection of the agency's proffered reason will permit, but does not compel, the trier of fact to infer the ultimate fact of intentional discrimination). Here, we are not persuaded that Complainant established disability or age discrimination. Specifically, the record does not show that S1 treated Complainant differently than similarly situated persons who were not disabled or who were younger. For example, C2 testified that she continued to rotate work areas because S1 did not grant the June 18, 2012, written request. Hr'g Tr., at 29, 31. In addition, we find that C3 and C4 were not similarly situated to Complainant because S1 assigned them to set work areas based on requests from customers in those work areas who were satisfied with how they handled those work areas and S1 did not receive a similar request for Complainant. Id. at 126-29.
After a careful review of the record, we find that the AJ's findings of fact are supported by substantial evidence in the record and the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We discern no basis to disturb the AJ's decision.
CONCLUSION
Substantial evidence in the record supports the AJ's finding that the Agency did not deny Complainant a reasonable accommodation or subject him to disparate treatment on the bases of disability and age when, from June 18, 2012 to September 22, 2012, his supervisor did not assign him to a set work area. Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 (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
__3/17/17________________
Date
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 On September 22, 2012, Complainant transferred to another facility.
3 29 C.F.R. � 1614.403(d) provides that any statement or brief filed on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. The record reflects that Complainant filed his notice of appeal and a supporting statement on October 14, 2014, and another supporting statement on November 24, 2014. The Commission declines to consider the November 24, 2014, supporting statement, as it was untimely pursuant to 29 C.F.R. � 1614.403(d).
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