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

Equal Employment Opportunity Commission

Jul 6, 2017

0120151128 (E.E.O.C. Jul. 6, 2017)

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

Buster D.,1
Complainant,

v.

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

Appeal No. 0120151128

Agency No. 4C-400-0031-14

DECISION

The Commission accepts Complainant’s appeal from the January 13, 2015, final Agency
decision (FAD) 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. The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Post Office in Georgetown, Kentucky. Complainant’s left arm and hand are partially
immobile due to a stroke he experienced in December 2010. In addition, Complainant has a
hearing impairment. In December 2012, Complainant experienced a seizure while on duty. In
January 2014, the Postmaster observed that Complainant was having substantial difficulty
completing his duties without assistance, even on light days. The Postmaster noted that
Complainant could only hold mail in his left hand when fully concentrating, that Complainant
could only drive with his right hand and had to reach across his body to finger mail, and that he
had to reach through the steering wheel to operate turn signals. Additionally, the Postmaster
noticed that Complainant had difficulty remembering things such as proper parking procedures

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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and whether he had mail to deliver to a particular house, which resulted in Complainant
frequently backtracking to make deliveries. Based on these observations, the Postmaster
requested that Complainant undergo a Fitness for Duty Examination (FFDE).

Complainant attended the FFDE on February 6, 2014. There was some confusion following the
FFDE as the FFDE doctor had overlooked the FFDE packet sent by the Agency. The FFDE
doctor found the packet, completed the full FFDE, and completed the FFDE narrative. The
FFDE doctor concluded that Complainant could not operate a Postal vehicle, that Complainant
could not operate “sensitive equipment,” and that there was no reasonable accommodation which
would allow Complainant to perform his full duties. Additionally, the FFDE doctor
recommended that Complainant undergo full cognitive, driving, and occupational examinations.
Based on the results of the FFDE, the Postmaster placed Complainant on Emergency Placement
in Off-Duty Status. The Emergency Placement was later removed from Complainant’s official
personnel records and he was granted paid leave.

On March 21, 2014, Complainant met with the District Reasonable Accommodation Committee
(DRAC). Complainant’s attorney participated in the meeting by telephone. Complainant and his
attorney suggested that a turn-signal device be installed on the right side of Complainant’s Postal
vehicle steering column to assist him in reaching the signal. The DRAC noted that this
accommodation would not be effective as the FFDE doctor indicated that Complainant could not
operate a Postal vehicle and that there was no accommodation which would allow him to
perform his duties. Additionally, Complainant and his attorney claimed that his doctor had
released him to full duty. Complainant, however, refused to provide updated documentation in
support of this assertion. The DRAC was unable to determine an accommodation that would
allow Complainant to perform his duties. Following the meeting, the DRAC undertook a search
for work available within Complainant’s restrictions. Complainant was granted sick leave while
DRAC searched for available work.

On July 18, 2014, the DRAC sent Complainant a letter scheduling a second DRAC meeting with
him on July 31, 2014. The letter informed Complainant that his attorney would not be permitted
to attend this meeting. Complainant responded that he would attend with his union
representative. The meeting was rescheduled for August 14, 2014, and Complainant attended the
meeting with his union representative. A resolution was not reached during this meeting, and the
DRAC continued looking for available work within Complainant’s restrictions. On October 10,
2014, the DRAC informed Complainant that his request for a turn-signal extender was denied
because he would still be unable to perform the essential functions of his duties as a Carrier. On
December 11, 2014, the DRAC informed Complainant that he would no longer receive
administrative leave effective December 27, 2014, as there were no available positions within his
restrictions within a 50-mile radius of the Lexington installation. Complainant was given the
option to request a search outside of the 50-mile radius, to request disability retirement, or to
resign.

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On April 2, 2014 (and twice amended), Complainant filed a formal complaint alleging that the
Agency discriminated against him on the bases of disability and in reprisal for prior protected
EEO activity when:

1. On February 6, 2014, he was sent for a Fitness for Duty Examination (FFDE) and
management contacted the physician who then called him back into the office
from the parking lot for additional tests;

2. On February 11, 2014, he was placed on Emergency Placement-Leave Without
Pay status, forcing him to use his sick leave, annual leave or file for disability
retirement;

3. On March 21, 2014, he met with the District Reasonable Accommodation
Committee (DRAC), but has not received a response back on a decision regarding
his request for accommodation; and

4. On July 19, 2014, he was notified by the District Reasonable Accommodation
Committee (DRAC) that his attorney would not be allowed to be present, and/or
represent him telephonically, during the July 31, 2014 DRAC meeting.

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 requested a
FAD. In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency initially determined that claims (1) and (4) could be dismissed pursuant
to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, and claim (2) pursuant to 29 C.F.R. §
1614.107(a)(5) as moot. Nevertheless, the Agency addressed the merits of the claims.
Specifically, as to claim (1), the Postmaster stated that he ordered Complainant for an FFDE on
February 6, 2014, because he could not handle mail properly with his left hand; could not operate
a vehicle safely; and could not finger his mail for delivery. The Occupational Health Nurse
Administrator (OHNA) affirmed that she received a faxed Return to Work form from the FFDE
doctor on the day of the FFDE, but it was not the narrative summary report she had requested.
OHNA confirmed that she called the doctor’s office and asked if he had received the full FFDE
packet of materials. The FFDE doctor had overlooked the packet, and the receptionist found
Complainant before he had left the office. OHNA stated that the additional tests performed by
the FFDE doctor were listed in the FFDE narrative report.

With respect to claim (2), the Postmaster asserted that he put Complainant on Emergency
Placement in an Off-Duty Status because they had received the information back from the FFDE
doctor that Complainant had been found medically unqualified and could not operate a Postal
vehicle, and further, that there were no reasonable accommodations that could be provided.
Complainant later filed a grievance and the emergency placement was removed from his
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personnel records and all leave was restored. The Postmaster noted that Complainant has been
out on sick, annual, or other paid leave from February 12, 2014, through at least September 12,
2014.

As to claim (3), the Postmaster confirmed that Complainant did not request a meeting with
DRAC, but agreed to attend. Complainant asked that he be provided with a vehicle that had the
turn indicator switch on the right side of the steering column as an accommodation, and when
asked, could not think of any other accommodation. The Postmaster noted that the turn indicator
switch would not have had an effect on whether Complainant could perform the duties of his
position, as it was such a small portion of the required activities. The Postmaster added that
Complainant’s attorney was totally disruptive during the DRAC meeting and that they could not
get anywhere during the meeting. The Postmaster stated that the meeting ended with no real
conclusions other than that they would have to get the law department involved.

Finally, regarding claim (4), the Labor Relations Specialist (LRS) stated that she had been told
that Complainant’s attorney was a hindrance to the process at the prior DRAC meeting, was
disruptive, and would not allow Complainant to participate. LRS affirmed that while normally
there would be no objection to having someone else in attendance, she decided that in order to
facilitate a discussion of what accommodations Complainant might need, it would be best to
follow Agency policy and only allow his union steward to be present. LRS added that she
followed the advice of the Eastern Area Law Department. LRS reported that she did not hear
any objection from Complainant, and that his only communication to her was his letter indicating
that he would be bringing his union steward to the meeting with him. During the meeting, LRS
stated that Complainant did not identify any accommodations for his condition; that he had been
uncooperative in the process; and that he claimed that there was nothing wrong with him and he
was fully able to perform the duties of a letter carrier.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination or reprisal as alleged. Complainant filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Postmaster discriminated and retaliated against him by
requesting that he undergo the FFDE. Complainant claims that management submitted false and
misleading information to the FFDE doctor which led to the FFDE doctor finding him unable to
perform his duties. Complainant argues that he was performing the duties of his position without
accommodation before the FFDE and the Agency acted on incomplete medical information when
it placed him on Emergency Placement. Complainant contends that he suggested that a “turn
signal adapter” be installed in his Postal vehicle; however, the Agency was unwilling to provide
one. Complainant claims that the Agency misrepresented what occurred during the first DRAC
meeting and that he and his attorney participated in good faith. Complainant claims that the
Agency retaliated against him by barring his attorney from the second DRAC meeting. Finally,
Complainant believes that he is entitled to an award of compensatory damages around $100,000.
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Accordingly, Complainant requests that the Commission reverse the FAD and award him
compensatory damages.

The Agency submitted a statement in opposition to Complainant’s appeal in which it urged the
Commission to affirm its final decision finding that Complainant was not discriminated against.

ANALYSIS AND FINDINGS

Fitness For Duty Examination

The Commission notes that the Rehabilitation Act places certain limitations on an employer’s
ability to make disability-related inquiries or require medical examinations of employees. The
inquiry may be made or the examination ordered only if it is job-related and consistent with
business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). This means that the employer
must have a reasonable belief based on objective evidence that an employee will be unable to
perform the essential functions of his or her job or poses a direct threat because of a medical
condition. EEOC Enforcement Guidance on Disability-Related Inquiries, Notice No. 915.002
(July 27, 2000), at Q.5. Objective evidence is reliable information, either directly observed or
provided by a credible third party, that an employee may have or has a medical condition that
will interfere with his ability to perform essential job functions or will result in direct threat. Id.
It is the burden of the employer to show that its disability-related inquiries and requests for
medical examination are job-related and consistent with business necessity. See Cerge v. U.S.
Dep't of Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9, 2007).

The Commission finds that Agency management had a reasonable belief that Complainant could
not perform the essential functions of his position safely because of a medical condition. The
Postmaster stated that essential functions of Complainant’s Letter Carrier position included five
to seven hours of driving; lifting up to 70 pounds; prolonged standing; and holding mail in one
hand while casing with the other. ROI, at 328, 343. The Postmaster observed that
Complainant’s ability to perform his duties began to deteriorate after he returned to work
following a seizure in December 2012. Id. at 205. Specifically, the Postmaster identified
Complainant’s inability to use his left hand to hold mail, his difficulty driving with just his right
hand while reaching across his body to finger mail for delivery, and the manner in which he
operated his turn signal in his Postal vehicle. Id. The Postmaster noted that Complainant often
backtracked to make deliveries, forgot parking procedures, and was taken off his route for safety
violations during a route inspection. Id. Based on these incidents and concerns about
Complainant’s thinking and memory skills, the Postmaster requested that Complainant undergo a
FFDE. Id.

Based on the record evidence, the Commission concludes that the Agency ordered Complainant
to undergo the FFDE on the basis of objective evidence, that is, his observed difficulties
performing his duties and numerous safety violations related to his condition. Thus, the
Commission finds that the Agency's request for the FFDE was job-related and consistent with
business necessity and did not violate the Rehabilitation Act.
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Disparate Treatment

To prevail in a disparate treatment claim such as this, 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 Constr. Corp. 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 802 n. 13. The burden 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination and reprisal, the Commission finds that Complainant failed to present evidence to
rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. In particular, with
respect to claim (1), as discussed above, the Postmaster ordered Complainant to undergo an
FFDE based on his observations of Complainant’s difficulties performing his duties and
numerous safety violations. ROI, at 205. OHNA denied contacting the FFDE doctor’s office to
request additional tests; rather, she stated that she contacted the FFDE doctor because the faxed
Return to Work form from his office did not contain the summary report she had requested. Id.
at 370. OHNA contacted the FFDE doctor’s office and it was determined that he had not seen
the full FFDE packet. Id. Complainant had not left the property yet and the FFDE doctor
completed the full FFDE narrative report as had been requested. Id. OHNA noted that the
FFDE doctor chose which tests were needed. Id. at 371.

Regarding claim (2), the Postmaster confirmed that he placed Complainant on Emergency
Placement in Off-Duty Status after the FFDE doctor indicated that Complainant was “medically
unqualified,” that Complainant could not operate a Postal vehicle, and that there were no
accommodations which would enable Complainant to perform the essential duties of his
position. ROI, at 225-26. The Postmaster stated that he believed that placing Complainant on
Emergency Placement in Off-Duty Status was proper based on his interpretation of the collective
bargaining agreement. Id. at 331. The Postmaster added that Complainant was initially in a non-
pay status while his duty status was under review; however, he allowed Complainant to use sick
leave and subsequently changed the LWOP to sick leave. Id. at 332. The Emergency Placement
was later removed from Complainant’s personnel records following the resolution of a
grievance. Id. at 331.

As to claim (4), LRS stressed that she sent Complainant the letter informing him that his attorney
could not participate in the second DRAC meeting based on advice from the Agency’s Eastern
Area Law Department. ROI, at 426. LRS stated that she learned that Complainant’s attorney
was a hindrance to the process and disruptive. Id. LRS affirmed that she decided that it would
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be better to follow Agency policy and only allow Complainant’s union representative to better
facilitate a discussion of how to accommodate Complainant. Id.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose not to request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The Commission
finds no persuasive evidence that Complainant’s protected classes were a factor in any of the
Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate by
a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the
Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry
this burden. As a result, the Commission finds that Complainant has not established that he was
subjected to discrimination or reprisal as alleged.

Denial of Reasonable Accommodation

Finally, with respect to Complainant’s claim that the DRAC failed to respond to his reasonable
accommodation request, under the Commission’s regulations, 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. See 29 C.F.R. §§ 1630.2(o) and (p). In order to establish that he was denied a
reasonable accommodation, Complainant must show that: (1) he is an individual with a
disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability
pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable
accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement
Guidance”).

Complainant underwent a FFDE in February 2014, and the FFDE doctor concluded that
Complainant could not perform the essential functions of his position, including operating a
Postal vehicle. ROI, at 212. Additionally, the FFDE doctor indicated that there were no
accommodations which would allow Complainant to perform the essential functions of his
position. Id. The FFDE doctor recommended additional medical evaluations that Complainant
could undergo; however, there is no evidence in the record that Complainant underwent the
recommended testing. Id. at 213. Based on the FFDE findings, Complainant was placed in a
non-pay status (subsequently changed to paid leave) while Agency officials attempted to resolve
the situation. During his first meeting with the DRAC, Complainant requested a turn signal
device which would eliminate the need for him to reach through the steering wheel with his right
hand to operate the vehicle turn signal controls. Id. at 373. Agency officials explained that this
would not be an effective accommodation because Complainant still would not be able to
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perform the full duties of his position. Id. at 333, 373. Complainant believed that he could
perform the full duties of his position; however, he failed to provide updated medical
documentation in support of his belief. The DRAC continued looking for work for Complainant
within his restrictions and granted Complainant paid leave. The DRAC ultimately could not find
work within Complainant’s restrictions and he was given the option to request a search outside
of the 50-mile radius of the Lexington installation, request disability retirement, or resign.
Agency’s Appellate Brief, Ex. 2.

The Commission finds that the record evidence supports that Complainant was not able to
perform the essential functions of his position with or without accommodation. Furthermore, the
record shows that the requested accommodation of a turn signal device would have been
ineffective as it would only address a small portion of Complainant’s essential duties. The
Commission finds that Complainant failed to prove that there was an accommodation available
which would have enabled him to perform the essential functions of his position or that there was
a vacant, funded position for which he was qualified and to which he could have been assigned.

Furthermore, the record indicates that the Agency provided Complainant an opportunity to
submit any additional information regarding an accommodation that would permit him to
perform his City Carrier duties. An agency may request additional information when presented
with a request for reasonable accommodation to evaluate a complainant’s proposed
accommodation in comparison to his current medical needs to determine what accommodation
would best serve the needs of the agency and complainant. EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC No. 915.002, at question 6 (Oct. 17, 2002). Moreover, when an individual’s disability or
need for reasonable accommodation is not obvious, and he fails to provide reasonable
documentation requested by the employer, the employer will not be held liable for failure to
provide the requested accommodation. Id. Here, the record shows that Complainant failed to
provide the Agency sufficient medical documentation to assist in addressing his condition.
Therefore, the Commission finds that Complainant has not established that the Agency failed to
provide him with a reasonable accommodation.

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
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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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. “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.
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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

July 6, 2017
Date