Rayford H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

May 23, 2019

0120180829 (E.E.O.C. May. 23, 2019)

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

Rayford H.,1
Complainant,

v.

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

Appeal No. 0120180829

Agency No. 4G335009017

DECISION

On December 26, 2017, 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
December 20, 2017, final decision (FAD) 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Clerk, PS-06, at the
Agency’s Post Office facility in Sarasota, Florida.

On May 24, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of disability (bilateral tendonitis shoulders/arms, rotator cuff injury,
neck pain, bilateral shoulder pain) when:

1. Beginning January 2017, and continuing, Complainant was denied overtime
opportunities; and
2. On or about February 18, 2017, Complainant was denied the opportunity to work
the President’s Day holiday.

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.
0120180829

2

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. Specifically, the decision
found that Agency officials articulated legitimate, nondiscriminatory reasons for their actions,
namely that the only overtime work available was outside Complainant’s medical restrictions.
The Agency further found that Complainant failed to show that the Agency’s articulated reason
for its actions was a pretext. The Agency did not address Complainant’s claims under a
Reasonable Accommodation analysis.

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
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”).

Disparate Treatment

Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima
facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

0120180829

3
This established order of analysis need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate
issue of whether complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that
complainant established his prima facie case of discrimination.

We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
With regard to both claims, Complainant’s Supervisors averred that Complainant was not
selected for overtime despite his seniority because the type of work tasks performed when
performing overtime were outside of Complainant’s medical restrictions. With regard
specifically to claim 2, one of Complainant’s supervisors (S1: no claimed disability) averred that
the type of overtime work available for that holiday “was repetitive in nature, to include
throwing parcels, dropping mail to carriers.” The Agency having articulated legitimate,
nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a
preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were
pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the
record we find that Complainant has failed to meet that burden.

We note initially that Complainant does not deny that the work was outside of his medical
restrictions. Complainant, who is on light duty, averred that his medical restrictions mean that “I
shouldn’t be pulling or pushing, reaching above shoulders, and no overhead work, no repetitive
work in both arms, and intermittent lifting no more than 20 pounds.” Instead, Complainant
argues that because he is near the top of the seniority list he should be provided overtime work
performing other tasks within his restrictions on the grounds that “there is always work to be
done to meet the standards of [the Agency] to our customers; from processing mail, parcels,
writing notices for packages, writing second notices, filing letters, parcels.” While Complainant
wishes that the Agency did things differently, we note that ultimately, managers have discretion
regarding how to best manage their offices to meet their needs and goals and it is within their
authority to make business decisions. Absent discriminatory animus, the Commission will not
second guess an Agency's business decisions. See Burdine, at 249. We note in this regard that the
record shows Complainant performed overtime on other occasions when work that fit within his
restrictions was available to be performed. Accordingly, we find that Complainant has not
shown, by a preponderance of the evidence, that the Agency’s legitimate, nondiscriminatory
reason for its actions are a pretext for discrimination.

Denial of Reasonable Accommodation

We note that the FAD did not address Complainant’s claims under a denial of reasonable
accommodation theory. In order to establish that Complainant was denied a reasonable
accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a
qualified individual with a disability; and (3) the Agency failed to provide a reasonable
accommodation.
0120180829

4
See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). Upon receipt of a request for
accommodation, the burden is on a “covered entity to initiate an informal, interactive process
with the individual with a disability in need of the accommodation.” 29 C.F.R. §1630.2(o)(3).

The obligation to make reasonable accommodation applies to all services and programs provided
in connection with employment. Interpretive Guidance on Title I of the Americans With
Disabilities Act, Appendix to 29 C.F.R. § 1630.9. The Agency has an obligation to provide
reasonable accommodation for overtime because it is a program the Agency offers to its
employees. Gil v. U.S. Postal Serv., EEOC Appeal No. 01990675 (Sept. 14, 2001).

The record establishes that Complainant is an individual with a disability. As noted above,
Complainant has a 20-pound lifting restriction, which the Commission has held may constitute a
substantial limitation in the major life activity of lifting. See Peebles v. United States Postal
Service, EEOC Appeal No. 01984745 (March 8, 2002) (holding that complainant was an
individual with a disability based on her 20 pounds lifting restriction). Also see Hebda v.
Department of the Interior, EEOC Appeal No. 01986569 (July 13, 2001).

We next need to establish if Complainant is a “qualified individual with a disability.” 29 C.F.R.
§1630.2(m). A “qualified individual with a disability” is one who satisfies the requisite skill,
experience, education, and other job-related requirements of the employment position and who,
with or without reasonable accommodation, can perform the essential functions of such position.
Id. The position description for Distribution Window and Mark Up Clerk, PS-06, states that the
duties of the position involve: making “primary and one or more secondary distributions of”
incoming and outgoing mail; selling stamps, postal cards, and money orders; accepting from and
making window deliveries to customers of parcel post, insured, c.o.d., and registered mail;
verifying first, second, third, and fourth class mailings as to size, weight, and postage; issuing
and cashing foreign and domestic money orders; renting postal boxes; providing information to
the public; and various other functions that do not involve heavy lifting. Nor does the position
description show that other essential tasks of the position are outside of Complainant’s medical
restrictions. We therefore find that Complainant has established that he is a qualified individual
with a disability.

With regard to claim 1, we note that Complainant has not specified the dates he was denied
overtime, and the record establishes that between January 21, 2016 and March 2nd, 2017, he did
perform 17.54 hours of “penalty” overtime, and 107.57 hours of overtime. Furthermore, S1
averred that Complainant did work overtime when there was work available that fit within his
restrictions. We therefore find that Complainant has not provided sufficient evidence to establish,
by a preponderance of the evidence, that he was denied a reasonable accommodation with regard
to claim 1. With regard to claim 2, Agency officials averred that the type of overtime available
on that date was outside of his medical restrictions. While Complainant claims generally that
“there is always work to be done” that he could have performed, he has not provided any
evidence that on this particular holiday there was work performed by other employees of lesser
seniority that he could have been assigned within his medical restrictions.
0120180829

5
As Complainant has not met his burden of proving suitable work was available for overtime on
the date in question, he has not established that he was denied a reasonable accommodation on
President’s Day 2017.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not shown that discrimination
occurred, and we AFFIRM the Agency's FAD.

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.
0120180829

6
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

May 23, 2019
Date