[Redacted], Eusebio S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jan 29, 2020

Appeal No. 2019000868 (E.E.O.C. Jan. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eusebio S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019000868 Agency No. 1G772001418 DECISION On October 22, 2018, 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 September 19, 2018, 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. ISSUE PRESENTED Whether the Agency correctly determined that Complainant was not subjected to discrimination based on disability when, on November 24, 2017 and continuing, his request for medical clearance to return to his Tractor Trailer Operator position has not been approved. 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. 2019000868 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Labor Custodial at the Agency’s North Houston Processing and Distribution Center (PD&C) in Houston, Texas. On March 8, 2018, Complainant filed an EEO complaint (with a subsequent amendment on March 19, 2018) alleging that the Agency discriminated against him based on disability (physical) as set forth above. Complainant identified his medical condition as a tumor of which management was aware; and which, he explained, they perceived as epilepsy. He asserted that his doctor noted that his tumor had receded, but it was unknown how long he is expected to have the medical condition; and that he has no limitations and can perform all his job duties. Complainant alleged discrimination when he was removed from the position of Tractor Trailer Operator by management and the Occupational Health Nurse Administrator (OHNA), explaining that he had requested to return to the position over a three-year period after his neurologist gave him a clearance status report to do so but the OHNA denied his request because she did not think he was ready. Complainant explained that he was denied a recertification from the Department of Transportation (DOT) by a DOT physician (P2) who he asserted never examined him, noting that he was denied a DOT physical examination in July 2014, due to the medicine he was prescribed. Complainant stated that P2 assumed the medicine was for a worse diagnosis, but he had experienced a “syncopal episode.” He contended that his medical condition was a factor in the discrimination, because OHNA had stated that it was. The record includes three pertinent letters from Complainant’s physician (P1) the first of which was a diagnosis of Complainant with a grade II “Oligodendroglioma” brain tumor, with no current physical deficits or limitations. P1 recommended that Complainant receive an official DOT physical examination for medical clearance; and she noted that he experienced an episode of transiently losing consciousness without clear seizure activity. P1 explained that she prescribed him prophylactic Keppra, and Complainant was aware that he needed to be seizure free for six months before being allowed to drive under Texas Law which would be December 24, 2014. The second letter dated September 1, 2016 cleared Complainant to return to work on September 2, 2016; and the third letter dated October 13, 2017, cleared Complainant to return to all work activities as a Tractor Trailer Operator, with no restrictions and no supervision required. The OHNA asserted that she was in an advisory position and had no knowledge of Complainant's request to return to his Trailer Tractor Operator position being denied by management. She stated that after Complainant was diagnosed with a Grade II “Oligodendroglioma” brain tumor and suffered a loss of consciousness, he failed his DOT physical examination. She asserted that Complainant was then referred to the District Reasonable Accommodation Committee (DRAC) and voluntarily took a downgrade to a Custodian position. The OHNA explained that Complainant was disqualified by P2, the Agency’s Contract Medical examiner in 2014, due to his medical condition and has not provided medical documentation to indicate that he has been seizure free for the last two years without taking antiseizure medications or that he had surgery to remove/resolve the tumor in the past two years for re-evaluation by P2. 2019000868 3 The OHNA stated that Complainant was offered the opportunity to go to the Agency’s Contract Examiner and provide the examiner a list of his current medication(s) and any other treatment received, but Complainant refused the offer. She asserted that she advised management that Complainant had not presented any medical documentation to indicate that his medical condition had changed from his prior diagnosis and therefore, he was still unqualified to drive per Federal Motor Carrier Safety Administration (FMCSA) guidelines on November 24, 2017. The OHNA stated that it was P2’s decision to recertify the employee based on FMCSA guidelines. She identified four Trailer Tractor Operators as employee comparators who have medical conditions that prevented them from meeting the DOT guidelines for medical recertification, and each of whom, she asserted, were disqualified from driving with the Agency. Management stated, in pertinent part, that because Complainant was no longer in the Motor Vehicle Services craft, he would have to apply to be reassigned or transferred from his Maintenance Craft position. They also denied knowledge of Complainant’s request to return to his Trailer Tractor Operator position. 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. CONTENTIONS ON APPEAL On appeal, Complainant asserts, in pertinent part, that all four tractor trailer operator comparators identified by the OHNA have medical conditions and have returned to their full-time positions. He contends that he received medical clearance in January 2015, and still has a current DOT Card; and that he has done everything required of him but still is denied the request to return to his position, including “eReassign,” and provided updated doctor statements. Complainant indicates that he was pressured into signing off on the DRAC, asserting that he is a qualified individual. The Agency did not submit an appeal statement. STANDARD OF REVIEW 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”). 2019000868 4 ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability; we find that the Agency articulated legitimate, nondiscriminatory reasons for not returning him to the Trailer Tractor Operator position. The OHNA explained that Complainant had been disqualified by P2; had not presented any medical documentation to indicate that his medical condition had changed from his prior diagnosis; and that he was still unqualified to drive under FMCSA guidelines. The Agency also noted that Complainant was no longer in the Motor Vehicle Services craft because he transferred to a Maintenance Craft position. In an effort to show pretext, Complainant contended that he did provide the required medical documentation; and the record includes three pertinent letters from P1 that support this contention. However, the OHNA stated Complainant was offered the opportunity to provide the Agency’s certified DOT contract examiner with information on his current medication(s) and any other treatment received, but he refused the offer. The medical report signed by P2 supports this explanation; and Complainant provided no evidence to show that he has been reevaluated by the DOT as required. Complainant’s assertion that he has presented evidence to the Agency that he has been cleared does not address the Agency’s position that he needed to be cleared by the DOT, and then reassigned to the Motor Vehicle Services craft. Regarding Complainant’s claim that he was pressured into accepting a lower grade Custodian position, the OHNA stated that he voluntarily accepted the downgrade to the Custodian position; and Complainant did not refute that statement with any evidence. As such, Complainant has failed to establish that the Agency’s explanations are pretextual. Finally, Complainant presented no supporting evidence for his assertion that the four comparators identified by the OHNA were all returned to their Trailer Tractor Operator positions under circumstances similar or identical to his. 2019000868 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 2019000868 6 “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 January 29, 2020 Date