Willie L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Feb 16, 2017

0120150048 (E.E.O.C. Feb. 16, 2017)

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

Willie L.,1
Complainant,

v.

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

Appeal No. 0120150048

Hearing No. 490-2012-00228X

Agency No. 4C-370-0051-12

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 22, 2014, final order 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transitional
Employee (TE) City Carrier at the Agency’s Chattanooga (Eastgate) Station in Chattanooga,
Tennessee. Complainant had transferred to Eastgate from a TE position in Bowling Green,
Kentucky in February 2011. Complainant’s official duty station was the Eastgate Station, but
he performed duties at two other stations. Complainant completed new employee training and
orientation prior to the transfer, which included information about an employee’s duty to
“report any accident or injury immediately to your supervisor, regardless of the nature of the
injury.”

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 July 22, 2011, Complainant reported to work at the Murray Lake Hills Station and was
instructed by his manager (M1) to report to the Highland Park Station. At approximately 9:00
a.m., Complainant exited the loading dock and twisted his ankle. Complainant acknowledged
that his ankle “hurt,” but he did not report the accident to anyone at the Murray Lake Hills
Station. Complainant drove 15 minutes to the Highland Park Station. When he arrived there,
his foot was throbbing and he had difficulty walking. The Highland Park Station manager
noticed Complainant in the parking lot, and immediately began the paperwork to report the
incident and to get medical attention for Complainant. Complainant reported in the Notice of
Traumatic Injury and Claim for Continuation of Pay that he “[m]isstep off sidewalk, twisted
right ankle, felt immediate pain, unable to put normal weight on right foot.”

From July 22, 2011, through mid-December 2011, Complainant was off work and used
crutches to get around. On December 15, 2011, Complainant’s physician released him from
the use of the crutches and placed him under the following restrictions: “May stick mail. No
walking routes. No standing for more than 30 minutes. Walking 30 minutes also.”
Complainant provided his supervisor (S1) his new restrictions, and S1 instructed Complainant
to report to the Murray Lake Hills Station on December 19, 2011. That day, S1 held an
investigative interview with Complainant regarding his failure to immediately report his injury
to anyone at the Murray Lake Hills Station, and for three absences he incurred on March 7,
March 9, and July 12, 2011. During the investigative interview, Complainant could not recall
the three absences, but denied acting in an unsafe manner when he incurred the injury.

On December 27, 2011, S1 requested Complainant’s removal for safety and attendance
deficiencies. M1 concurred in the request for removal. On January 17, 2012, S1 issued
Complainant a Notice of Proposed Removal charging him with unsatisfactory performance of
his duties, failure to conduct himself in a safe manner, and unsatisfactory attendance. On
January 30, 2012, Complainant was issued a corrected Notice of Proposed Removal which
corrected an unscheduled absence.

On January 22, 2012, the Office of Workers’ Compensation Claims Examiner (OWCP Claims
Examiner) assigned to Complainant’s case informed Complainant that he had spoken with the
Agency’s Health and Resource Management Specialist (HRM) and the Office of Workers’
Compensation Programs Nurse (OWCP Nurse) assigned to his case. The OWCP Claims
Examiner told Complainant that even if the Agency terminated his employment, it would still
be required to pay him workers’ compensation benefits. On February 2, 2012, the OWCP
Nurse went to Complainant’s physician’s office and received a new Duty Status Report (CA-
17) for Complainant with no restrictions. The next day, Complainant’s physician issued
another CA-17, which essentially restated the December 2011 restrictions, but made clear that
Complainant could drive a route. Complainant believed that HRM and the Chattanooga
Officer-in-Charge (OIC) were behind the OWCP Nurse’s actions.

On February 23, 2012, OIC removed Complainant from service based on his failure to
immediately report the accident and for not being regular in attendance. TEs are not subject to
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progressive discipline and may be removed for just cause under the collective bargaining
agreement.

On April 25, 2012 (and later amended), Complainant filed a formal complaint alleging that the
Agency discriminated against him on the bases of disability (fractured ankle) and in reprisal for
prior protected EEO activity when on January 30, 2012, Complainant was issued a Notice of
Proposed Removal, and subsequently issued a Letter of Decision dated February 23, 2012,
effecting his removal as of March 17, 2012; and on or about February 2, 2012, Agency
officials requested that his doctor change his medical restrictions.

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 Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on July 14 and 16, 2014, and subsequently issued
a bench decision on July 28, 2014.

In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. With regard to his removal, the AJ determined that
OIC testified credibly that Complainant’s failure to immediately report the accident was the
main impetus for her decision and that, even without the three unscheduled absences, she
would have terminated Complainant’s employment. The AJ noted that Complainant was a
transitional employee who could be removed for just cause without the protection of
progressive discipline afforded to career employees. The AJ found that Complainant’s parsing
of the words “hurt” and “injured” to excuse his failure to report the accident immediately to
his supervisor was disingenuous, particularly in light of his statement on the day of the
accident that he had twisted his ankle and “felt immediate pain.” The AJ did not find it
credible that Complainant did not realize that he was injured. Further, the AJ determined that
any reasonable employee under the circumstances as described by Complainant himself on the
day of the accident should have known to report the injury at the site of the injury, and not
drive across town before telling anyone what had happened.

As to Complainant’s claim that Agency officials requested that his doctor change his medical
restrictions, the AJ determined that the Complainant failed to show that the Agency had
anything to do with the February 2, 2012, change in his restrictions. The AJ found that, at
best, the evidence showed that HRM had a conversation with the OWCP Claims Examiner and
the OWCP Nurse, neither of whom worked for the Agency, about the status of Complainant’s
workers’ compensation benefits if he were terminated as had been proposed. The AJ noted
that there was nothing improper about that conversation. The AJ found that there was no
evidence that what the OWCP Nurse did after that conversation was controlled, influenced, or
directed by HRM or any other Agency employee. The AJ concluded that HRM testified
credibly that she believed the removal of all restrictions was questionable in light of
Complainant’s medical progress, and she did not act on them. Thus, the AJ found that there
was no evidence to tie the Agency to the OWCP Nurse’s actions.
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The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination or reprisal as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that Agency officials gave contradictory testimony regarding
who made the decision to terminate Complainant. Complainant argues that he reported his
injury upon realizing that he had actually injured himself. Further, Complainant claims that
Agency officials provided inconsistent and contradictory testimony regarding his attendance
and that the AJ erred in not finding that those charges were discriminatory or retaliatory in
nature. Finally, Complainant argues that substantial evidence shows that OIC and HRM
attempted to have his medical restrictions changed. Accordingly, Complainant requests that
the Commission reverse the final order. The Agency submitted a brief in opposition to
Complainant’s appeal in which it urged the Commission to affirm its final order and the AJ’s
decision.

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 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. See 29 C.F.R.
§ 1614.405(a).

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 EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at
§ VI.B. (Aug. 5, 2015).

ANALYSIS AND FINDINGS

Disparate Treatment

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). He must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Once Complainant
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has established a prima facie case, the burden of production then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons for
its actions are pretext for discrimination. Id. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993).

Upon review, the Commission finds substantial evidence supports the AJ’s decision.
Assuming arguendo that Complainant established a prima facie case of discrimination and
reprisal, substantial record evidence shows that Agency officials articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, management officials testified that they
proposed and ultimately decided to terminate Complainant based on his failure to immediately
report his injury and for his failure to be regular in attendance. Hr’g Tr., Vol. 1, at 288; Hr’g
Tr., Vol. 2, at 461. Regarding his injury, OIC testified that she believed that Complainant had
some indication that he suffered some injury or had some accident when he was at the Murray
Lake Hills Station and that his delay in reporting the accident violated Agency policy. Hr’g
Tr., Vol. 2, at 354-55. While the AJ noted that the absenteeism charge may have been
questionable, OIC testified credibly that the main reason she sustained the proposed removal
was Complainant’s failure to report the accident. Hr’g Tr., Vol. 1, at 310. OIC noted that
there was no progressive discipline for TEs. Id. at 276.

Furthermore, as to Complainant’s claim regarding his medical restrictions, HRM testified that
she had no involvement in the OWCP Nurse obtaining a CA-17 from Complainant’s doctor.
Hr’g Tr., Vol. 2, at 390, 405. HRM further testified that she found it questionable when she
received the CA-17 with all restrictions removed, but before she could check into it she
received an updated CA-17 with the previous restrictions essentially intact. Id. at 406.
Likewise, OIC denied any involvement in trying to get Complainant’s restrictions changed.
Hr’g Tr., Vol. 1, at 316. Thus, substantial record evidence supports the AJ’s finding that no
Agency official directed or influenced the OWCP Nurse’s actions.

The Commission finds that there is substantial evidence in the record to support that
Complainant did not establish that the Agency's explanation for its actions was a pretext for
discrimination or reprisal. The record and facts gleaned at the hearing fail to disclose any
evidence purporting to show the Agency's actions were pretext for discriminatory or retaliatory
animus. Thus, after reviewing the record and considering arguments on appeal, the
Commission finds that the AJ made reasonable credibility determinations, which are not
contradicted by objective evidence, and her factual findings are supported by substantial
evidence. Therefore, the Commission finds that Complainant has not established that he was
subjected to discrimination or reprisal as alleged.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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
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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

February 16, 2017
Date