Byron E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Sep 1, 2016

0120143037 (E.E.O.C. Sep. 1, 2016)

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

Byron E.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120143037

Hearing No. 460-2012-00075X

Agency No. 4G-770-0291-09

DECISION

On August 28, 2014, Complainant filed an appeal from the Agency’s August 1, 2014, final
order 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal
timely and accepts it for de novo review. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

Until his retirement in July 2009, Complainant worked as a City Carrier at the Sam Houston
Station in Houston, Texas. On August 19, 2013, he filed an EEO complaint in which he
alleged that because of his disability (long-term effects of injuries to right shoulder and knees),
age (63), and in reprisal for his previous EEO activity, the Customer Services Supervisor
(CSS) harassed him by compelling him to work outside of his medical restrictions, and in so
doing, forced him to retire effective July 1, 2009. After a lengthy and complex procedural
journey which included two decisions from the Merit Systems Protection Board dismissing the
case for lack of jurisdiction, the Agency accepted and investigated the complaint.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but failed to respond to the Agency’s September 3, 2013, motion for
summary judgment. On July 15, 2014, after not having received Complainant’s response, the
AJ assigned the case granted the Agency’s motion and issued a decision without holding a
hearing. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

According to Duty Status Reports from the Department of Labor dated February 5 and March
6, 2009, Complainant sustained an injury that resulted in a diagnosis of tendonitis. The injury
occurred on May 22, 2001. He was under medical restrictions that included: continuous lifting
up to thirty pounds and intermittent lifting up to seventy pounds for up to five hours per day;
sitting for up to seven hours per day; standing, walking, twisting, pushing and pulling, simple
grasping, fine manipulation, reaching above the shoulder, and driving a vehicle all up to five
hours per day; climbing, bending and stooping up to three hours per day; and kneeling up to 2
hours per day. IR 136-37.

Complainant suffered a second on-the-job injury on March 29, 2013. The diagnosis for this
injury, according to a duty status report dated June 4, 2009, was a tear in the lateral cartilage
in both knees. His restrictions due to this injury included: lifting five pounds continuously,
lifting ten pounds intermittently, sitting, standing, and driving a vehicle for up to five hours
per day; walking, twisting, pushing and pulling, and reaching above the shoulder for up to four
hours per day; simple grasping and fine manipulation for up to three hours per day; and
climbing, kneeling, and bending and stooping up to two hours per day. IR 138.

Complainant completed an application for immediate retirement, which he signed on May 14,
2009. IR 152-57. The application was signed by a Human Resources Official on June 22,
2009. IR 157.

Complainant averred that the CSS instructed him to work outside of his medical restrictions.
He identified an incident that allegedly occurred on June 8, 2009, in which he informed the
CSS and another supervisor that he could not deliver all the mail for the zip code zone, which
included both regular and express mail. He also averred that he was put off the clock by the
other supervisor because he was unable to deliver all of the mail and because the other
supervisor had retaliated against him, which, he alleges, precipitated his decision to retire. His
last day of work was June 27, 2009, and his retirement took effect on July 1st. IR 84-87.

The CSS denied that she ever instructed Complainant to work outside of his medical
restrictions. IR 96-97. In an email to the EEO investigator dated November 28, 2009, the
Customer Services Manager (CSM) who supervised the CSS stated that Complainant’s medical
restrictions were never violated, and that on June 9, 2009, Complainant was put off the clock
pending disciplinary action for allegedly threatening the other supervisor on June 8th. The
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CSM also stated that Complainant had already put in his application for retirement on May 14,
2009. IR 158. The CSM’s statement had been confirmed by a member of the Human
Resources staff, who averred that Complainant had been placed in emergency non-pay status
between June 9 and June 13, 2009, after submitting his application for retirement in May.

ANALYSIS AND FINDINGS

In essence, Complainant is claiming that he was constructive discharged. A discriminatory
constructive discharge occurs when an Agency, motivated by discriminatory animus, creates
working conditions that are so difficult, unpleasant, or intolerable that a reasonable person in
Complainant’s position would feel compelled to resign. Ileana R. v. Department of Homeland
Security, EEOC Appeal No. 0120120394 (November 24, 2015). The Commission has
adopted a three-pronged test for establishing a constructive discharge. Complainant must show
that: (1) a reasonable person in his position would have found the working conditions
intolerable; (2) conduct which constituted prohibited discriminatory treatment created the
intolerable working conditions; and (3) Complainant’s involuntary resignation resulted from
the intolerable working conditions. Id.

In support of his constructive discharge claim, Complainant identified as the intolerable
working conditions the CSS forcing him to work outside of his medical restrictions and being
placed in emergency non-pay status on June 9, 2009. Beyond his own assertions, however, he
has not submitted any sworn statements from other witnesses or documents that contradict the
assertion the CSS made in her affidavit that she never asked Complainant to work outside of
his medical restrictions. Likewise, Complainant offers no statements or documents that call
the CSS’s veracity into question. As to the emergency off-duty placement, both the CSM and
the Human Resources staff member stated that the reason the action was taken was that
Complainant had behaved toward the other supervisor in a manner considered to be
threatening. Complainant has not presented any evidence that undermines their truthfulness as
witnesses or the accuracy of their statements. Consequently, we find that he has not satisfied
the first prong or the second prong of the constructive discharge analysis. Moreover, the fact
that Complainant had initiated his retirement application on May 14, 2009, nearly a month
before the incident that resulted in his being placed in emergency non-pay status means that it
is impossible for his retirement to have resulted from that incident. This, in conjunction with
Complainant’s failure to prove that the CSS forced him to work outside of his medical
restrictions, fatally undermines his constructive discharge claim. We therefore agree with the
Agency that Complainant has not sustained his burden of proof that he was constructively
discharged in violation of the Rehabilitation Act or the ADEA.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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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
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

September 1, 2016
Date