Augustine P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Nov 14, 2018

0120172581 (E.E.O.C. Nov. 14, 2018)

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

Augustine P.,1
Complainant,

v.

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

Appeal No. 0120172581

Hearing No. 520201600178X

Agency No. 1B041000213

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s June15,
2017, Final Order concerning an 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 was employed by the Agency as
a Mail Handler, PS-4, at the Agency’s Southern Maine Processing and Distribution Center
("P&DC") in Scarborough, Maine.

On August 14, 2013, Complainant filed an EEO complaint alleging discrimination by the
Agency based on disability when:

1. On May 6, 2013, he was issued a Notice of 7-Day No Time-off Suspension due to
a failure to be in regular work attendance/absent without leave (“AWOL”), and

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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2. On June 26, 2013, his request for a reasonable accommodation was denied by the
Agency’s District Reasonable Accommodation Committee (“DRAC”).2

After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”).
Complainant timely requested a hearing. The Agency submitted a motion for a decision without
a hearing, and, over Complainant’s objection, the AJ subsequently issued a decision by summary
judgment in favor of the Agency on June 7, 2017.

In reaching this decision, the AJ identified the following undisputed facts from the evidence
developed during the investigation:

Complainant has been diagnosed with major depression, obsessive compulsive disorder and
circadian rhythm sleep disorder. His disabilities impair, among other things, his memory,
concentration, and ability to fall asleep and/or wake up, regardless of phone calls and alarm
clocks. These impairments, which are chronic and intermittent, sometimes cause Complainant to
be late to work, or miss work all together. In accommodation to Complainant’s disabilities,
Agency management approved leave under the Family and Medical Leave Act (“FMLA”),
included up to 10 thirty-minute late arrivals and 4 absences per month.

Mail Handlers such as Complainant are integral to ensuring mail is timely distributed to the
Agency’s locations throughout the state to meet scheduled delivery deadlines. For unscheduled
leave, such as late arrival or absence, all employees, including Mail Handlers, are required to use
the Agency’s Interactive Voice Response System (“IVR System”) prior to the beginning of their
shift, to provide the Agency with an opportunity to arrange coverage. Complainant was still
expected to call the IVR System prior to his shift when he would be late or absent due to his
disability-related impairments.

Complainant was not always able to comply with the Agency’s policy of calling the IVR System
to report unscheduled leave because of his disabilities. As a reasonable accommodation,
Complainant asked that he be exempt from the policy (“Request 1”). When DRAC denied the
request, Complainant filed an EEO complaint on October 12, 2011.3

2 On appeal, Complainant contends that the AJ erred, and that the DRAC decision at issue is the
October 16, 2013 denial of his request for reconsideration of his June 26, 2013 denial. As they
concerned the same request (“Request 2”) we find the issue fully addressed.

3 Complainant pursued a grievance on the same issue. See USPS and NPMHU, Case No.
B06M1BD 12330567 (2013) (finding, through arbitration, that Complainant was “responsible for
absences not protected by FMLA and for giving management notice of absences.”)

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The matter was ultimately appealed to the Commission, which, on February 20, 2015, found no
discrimination, reasoning that “to the extent that Complainant was really requesting to be able to
call in or report to work whenever he felt able, the Commission has found that such an
accommodation is not reasonable on its face.4

On April 2, 2013, Complainant initiated the interactive process, requesting another reasonable
accommodation related to his difficulties complying with absence reporting, by proposing an
alternate method of reporting absences attributable to his disability. (“Request 2”). Complainant
offered to set up an automated messaging system (voice or email), which would notify
Management that he would not be in to work. On days Complainant could come in to work, he
would disable the message. However, if he overslept or was prevented, due to his impairments,
from calling the IVR System, Management would still be made aware of his absence by the
automatic message.

On or about April 25, 2013, Complainant participated in a pre-disciplinary interview with the
Attendance Control Supervisor (“AC”) regarding 10 late arrivals and 1 day marked absent
without leave (“AWOL”) between January 14, 2013 through April 15, 2013. Complainant
attributed the unauthorized absences to his disabilities. He disclosed to AC that he requested a
reasonable accommodation on April 2, 2013, to address his occasional inability to use the IVR
System. He further explained that some of the absences she provided were protected under
FMLA and should not be subject to disciplinary action. On May 6, 2013, AC issued the Notice
of 7-day Suspension, Failure to be Regular in Attendance/AWOL to Complainant.

On May 14, 2013, management met with Complainant for an interactive meeting regarding his
reasonable accommodation in Request 2. On June 26, 2013, DRAC denied Complainant’s
request. Complainant appealed the decision, which he interpreted erroneously as conflating
Request 2 with Request 1. DRAC denied Request 2 again on October 18, 2013.

Complainant initiated the instant EEO complaint and pursued a grievance on the same claims.
The grievance escalated to arbitration, on August 7, 2015, the Arbitrator, citing the
Commission’s February 20, 2015 Decision, denied Complainant’s grievance. Likewise, the AJ
assigned to the instant complaint determined that the Commission’s February 20, 2015 decision
already found Complainant’s requested accommodation was not “reasonable.” The AJ also
found no evidence to support Complainant’s disparate treatment complaint.

The Agency issued its Final Order adopting the AJ’s findings. The instant appeal followed.

4 EEOC Appeal No. 0120123390 (Feb. 20, 2015) (It is not "plausible" or "feasible" for an
employer to excuse chronic erratic absenteeism and tardiness by an employee who cannot
provide timely notice sufficient to enable the employer to ensure adequate staffing.”) citing
Wiley v. United States Postal Serv., EEOC Appeal No. 0720020105 (Sept. 15, 2003),
reconsideration denied, EEOC Request No. 0520040147 (Dec. 11, 2003).
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ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that
an administrative judge’s determination to issue a decision without a hearing, and the decision
itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law.5 Such a dispute
would indicate that a hearing is necessary to produce evidence to support a finding that the
agency was motivated by discriminatory animus.

Here, Complainant argues that a dispute of material fact exists as to the reasonableness of the
accommodation in Request 2. Complainant also argues that the Agency’s actions amount to
disparate treatment, citing instances where other employees used alternative methods for calling
out, bypassing the IVR System, yet his request was denied.

Reasonable Accommodation

An agency is required to reasonably accommodate the known limitations of a qualified
individual with a disability, unless it can show that doing so would cause an undue hardship to its
operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement
Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agriculture,
EEOC Appeal No. 0120120400 (Dec. 3, 2015). While Complainant is entitled to an effective
reasonable accommodation, he is not entitled to the accommodation of his choice. Lynette B. v.
Dep’t of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). For purposes of this decision,
we assume that Complainant is a person with a disability.

Complainant contends that the AJ erroneously “conflated” Request 2 (alternative method of
providing advanced notice) with Request 1 (exemption from the Agency’s policy for advance
absence notification). We disagree. Even though Complainant is offering an alternative method
of reporting in Request 2, his request still has the purpose and effect of exemption from the

5 Complainant has not provided sufficient reason or evidence to warrant reversal of the AJ’s
evidentiary decision to exclude transcripts of his secretly recorded discussions with DRAC.
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Agency-wide policy of using the IVR System to report absences. In short, Complainant’s
proposal in Request 2 would, similar to Request 1, leave the Agency without a reasonable ability
to schedule alternative assignments to adequately cover work resulting from Complainant’s
unscheduled absences. We note that if Complainant had the ability to “disable” an automatic
message in a timely manner, he also would have the ability to provide notice through the IVR
System. Regardless of how reasonable Complainant believes his alternate system to be, as
previously decided, such a request still is not, on its face, a “reasonable accommodation.”

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, 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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

For purposes of establishing pretext, comparative evidence relating to other employees is
considered relevant when they are “similarly situated.” See Anderson v. Dep’t of Treasury,
EEOC Appeal No. 01A22092 (Mar. 13, 2003). In other words, all relevant aspects of the
employees' work situation are identical or nearly identical, i.e., they report to the same
supervisor, perform the same job function, work during the same time periods, and, in instances
where the Agency is responding to “problem conduct” (e.g. attendance deficiencies), they
engaged in the same conduct. See Stewart v. Dep’t of Defense, EEOC Appeal No. 01A02890
(Jun. 27, 2001); Jones v. United States Postal Serv., EEOC Appeal No. 01983491 (Apr. 13,
2000); See Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration
denied, EEOC Request No. 05A20020 (Dec. 28, 2002).
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This Commission has previously found that another employee cannot be considered “similarly
situated” to the complainant if the complainant and the employee have different medical
restrictions. See Kirkman v. United States Postal Serv., EEOC Appeal No. 01975352 (May 18,
2000).

For Claim 1, the Agency’s legitimate nondiscriminatory reason for issuing the 7 Day Notice of
Suspension, as stated on the document itself, are 11 attendance deficiencies, which Complainant
does not dispute. Complainant has not offered any similarly situated comparator evidence that
someone outside his protected class was treated more favorably after committing the same
infraction. While Complainant provides indicia of discriminatory motive in that management’s
attitude toward his disability was skeptical, that alone is not sufficient to establish an issue of
material fact.

For Claim 2, we have already established that the Agency had a legitimate nondiscriminatory
reason for denying Request 2, as use of an automatic message rather than the IVR Service does
not constitute a reasonable accommodation. Complainant’s disparate treatment argument, which
states that other employees routinely use alternate methods to call out cannot apply, as he has not
shown these employees to be “similarly situated,” nor are any of the referenced alternative
methods equivalent to the accommodation in Request 2.

We find Complainant is unable to identify an issue of material fact that would overcome the
Agency’s legitimate nondiscriminatory reasons for its actions in both Claims 1 and 2.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s 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.
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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. “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.
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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

November 14, 2018
Date