Sam L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

0120181527 (E.E.O.C. Sep. 26, 2019)

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

Sam L.,1
Complainant,

v.

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

Appeal No. 0120181527

Agency No. 1K302006317

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 1, 2018, final
decision 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 Commission AFFIRMS the
Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mail
Processing Equipment Mechanic (MPE), Level 9, at the Agency’s North Metro Processing and
Distribution Center (North Metro P&DC) facility in Duluth, Georgia. As an MPE,
Complainant’s job duties entail providing repairs and maintenance on the facility’s mail
processing equipment, including the delivery bar code sorter (DBCS) machine. His first-level
supervisor was the Supervisor of Maintenance (SM) and his second-level supervisor was the
Manager of Maintenance Operations (MO). Manager of Maintenance (MM) was Complainant’s
third-level supervisor at the time at North Metro P&DC.

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.
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On August 17, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of religion (Christian) and disability (Multiple Sclerosis)
when:

1. Between June and September of 2017, his change of schedule request was denied;
2. In May 2017, he was subjected to a pre-discipline interview (PDI);
3. On or about May 30, 2017, his Internet access was revoked;
4. On or about May 30, 2017, his request to use the handicap door to enter the Postal
facility was denied; and
5. On May 30, 2017, he was issued a Letter of Warning (LOW).

Complainant also alleged hostile work environment based on disability (Multiple Sclerosis),
when:

6. On August 9, 2017, SM harassed him about a DBCS machine.

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). 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 filed the instant appeal.

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”).

Disability

An agency is required to make reasonable accommodation to the known physical and mental
limitations of a qualified individual with a disability unless the Agency can show that
accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. In order to establish he was
unlawfully 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.
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See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, No. 915.002 (October 17, 2002).

Here, assuming, without finding, that Complainant is a qualified individual with a disability, the
record shows Complainant was granted a reasonable accommodation. Regarding Claim 4,
Complainant alleged MM denied his request for access to the handicap door at the rear of the
building.2 MM stated when Complainant verbally requested access to use the handicap door in
July or August 2017, MM directed Complainant to submit his request to the District Reasonable
Accommodation Committee (DRAC). MM refuted the allegation that he denied the request and
stated, while he was not involved with the decision from DRAC, the request was granted.
Complainant also alleged he submitted a request to MO in July 2017. MO corroborated that on
July 26, 2017, Complainant was referred to DRAC for processing of the request. Both MM and
MO stated Complainant never submitted a request in writing or provided any documentation to
them.

After he was referred to DRAC, Complainant submitted a written request for access to the
handicap door which was received by DRAC on July 31, 2017. Complainant stated he was
mailed paperwork from DRAC to be completed by his doctor to support his request for
reasonable accommodation. His physician completed the form indicating Complainant was
undergoing treatment for multiple sclerosis but had no work restrictions. His physician noted that
due to his disability and medications, he may need to park closer to the building and may need to
take intermittent breaks. Complainant stated in his affidavit that he provided this medical
documentation to Human Resources and DRAC in September 2017.

Thereafter, on September 26, 2017, Complainant met with the DRAC Committee, including
DRAC Chairperson, MO, an Agency attorney, a disability coordinator, and a licensed medical
professional, to discuss his request. On October 12, 2017, the DRAC Chairperson issued a letter
to Complainant regarding his accommodation request and the meeting that was held. The letter
informed Complainant that the medical documentation provided to DRAC does not specify that
Complainant is in need of access to a particular door as he requested. Despite the deficiency in
his documentation, DRAC informed Complainant that maintenance management nonetheless
agreed to accommodate Complainant’s request for access to the rear door as well as the handicap
door at the facility.

Nothing in the record indicates Complainant requested closer parking, intermittent breaks, or any
other accommodation due to his condition. Moreover, he did not have work restrictions or
doctor’s recommendation that he be granted access to certain doors. Accordingly, we find that
Complainant has not shown that the Agency failed to provide him with a reasonable
accommodation or otherwise violated the Rehabilitation Act.

2 Complainant references both a handicap door and a rear door at the facility interchangeably.
Regardless, the Agency granted him access to both. Complainant admitted in his affidavit he
now has access to the handicap door and the rear door of the maintenance facility as requested.
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Disparate Treatment

In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction 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,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, assuming arguendo Complainant established a prima facie case of discrimination, we find
that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Additionally,
Complainant failed to show that these reasons were pretextual. Specifically, regarding Claim 1,
Complainant alleged on an unidentified date he requested a change of schedule for personal
convenience from his current schedule to start and end his shift two hours earlier. Complainant
did not allege the schedule change was to accommodate his disability; rather he alleged it was
denied in part based on his disability. Complainant stated he submitted this request to SM after
receiving a signature from a member of the Union. Complainant alleged his request was denied
for the needs of service, despite other employees receiving requested schedule changes.

A review of the record directly contradicts Complainant’s allegation. The record includes
Complainant’s two Request for Temporary Schedule Change for Personal Convenience, PS
Form 3189s, which indicate that on June 27, 2017, and July 31, 2017, he requested to change his
start time to two hours prior to his normal start time, from 6:00 a.m. to 4:00 a.m. The June 27,
2017, request covered the period from July 3 to August 4, 2017. The July 31, 2017, request
covered the period from August 7 to September 8, 2017. The record indicates within one day of
Complainant submitting both requests, SM signed and approved each request.

Additionally, SM agreed in his statement that those individuals listed by Complainant received a
schedule change approval. SM stated to his knowledge no schedule change requests had been
denied, including Complainant’s requests. MM also corroborated SM. MM stated SM is the
responsible management official for schedule changes and, to his knowledge, Complainant had
not been denied a schedule change. We find Complainant failed to establish by a preponderance
of the evidence that his schedule change was denied as alleged.

Regarding Claim 2 and Claim 5, Complainant alleged that he received a PDI in May 2017, and,
subsequently, was issued a LOW by SM related to Complainant’s alleged misconduct. SM
confirmed Complainant was given a PDI by the previous Supervisor of Maintenance prior to the
issuance of the LOW.
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Complainant alleged during the PDI meeting, he met with his supervisor and the Union Steward
to address allegations made by another coworker that Complainant referred to him as a terrorist.
Complainant alleged he received this PDI and LOW in part based on his religion as the coworker
alleging misconduct by Complainant is a Muslim. Complainant filed a grievance regarding the
LOW that was issued based on a coworker’s allegation. As a settlement of the grievance,
Complainant and the Agency agreed the LOW would be expunged with all references and files
related to this matter to be removed from Complainant’s record and management’s records. As a
part of that settlement agreement, Complainant agreed to be given an official discussion. For
Claim 2 and Claim 5, Complainant failed to identify similarly situated individuals who were
treated more favorably in order to establish the Agency’s legitimate, nondiscriminatory reasons
were pretextual.

Regarding Claim 3, Complainant alleged MM revoked his Internet status based on his protected
status. MM admitted he is the responsible management official for revoking Internet access for
employees at North Metro P&DC. MM did not recollect revoking Complainant’s Internet access
but stated if he did, he did so because he saw Complainant surfing the Internet. MM denied that
the revocation was based on Complainant’s religion or disability. MM stated he would revoke an
employee’s Internet access when they were surfing the Internet at work, which was not necessary
for their job duties. Contrary to Complainant’s statement that he used the Internet to perform
maintenance on Agency equipment, MM stated none of Complainant’s job duties require him to
use the Internet. MO corroborated this and stated the only computer access needed by
maintenance employees is the Agency’s Intranet for internal postal only websites. Complainant
never alleged he was denied access to the Intranet. MM stated Complainant has never inquired or
requested his access be reinstated. Complainant stated he was never given a reason his access
was revoked but that MM told him “he does not care.”

Moreover, in addition to Complainant, MM admitted he has revoked other employees Internet
access and he is unaware of any employees who have not had their Internet access revoked after
he discovered them surfing the Internet. Complainant merely stated other “maintenance
employees” at his facility have not had their Internet access revoked but did not identify specific
individuals.

Regarding Claim 4, Complainant alleged the denial of access to the handicap door was based on
his religion and disability. As discussed, the record establishes Complainant was granted access
to the rear door despite failing to provide documentation establishing his need. SM, MO, and
MM all refuted the claims that actions directed towards or taken against Complainant were based
on his protected status. Accordingly, we find Complainant failed to establish the Agency’s
legitimate, nondiscriminatory reasons were a pretext for discriminatory animus.

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Harassment

Additionally, looking at the complaint as one complaint of harassment, we find that the alleged
conduct did not amount to a discriminatory hostile work environment and we find no evidence
that the alleged harassment was motivated by discrimination. Rather, the record reflects evidence
of Complainant’s disagreements with coworkers and management officials’ instructions and
discretion over Complainant’s performance as an MPE at the facility. Regarding Claim 6,
assuming, arguendo, Complainant’s allegations are true, this single incident is not severe or
pervasive enough to establish a hostile work environment. Complainant alleged SM harassed
him on August 9, 2017, by stating that the DBCS machine under his responsibility was noisy.
SM refuted this statement and stated he was simply telling Complainant to do his job, which was
to perform a maintenance repair on the bearings of the machine. SM stated that, in response,
Complainant got very loud and complained about doing his job. SM denied that this request was
based on Complainant’s disability. Accordingly, we find no reason to disturb the Agency’s
decision finding no discrimination or harassment as alleged.

CONCLUSION

We AFFIRM the Agency’s final decision finding no discrimination.

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.
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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.
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

September 26, 2019
Date