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

Equal Employment Opportunity Commission

Oct 23, 2018

0120172255 (E.E.O.C. Oct. 23, 2018)

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

Cary R.,1
Complainant,

v.

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

Appeal No. 0120172255

Agency No. 1K302008616

DECISION

On June 13, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 30, 2017, 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 the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer
Operator, PS-08, at the Agency’s Atlanta Processing and Distribution Center facility in Atlanta,
Georgia.

On November 22, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), disability
(unspecified) and age (over 40) when:

1. On July 22, 2016, he was placed on “emergency placement,” in an off-duty
without-pay status; 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 October 7, 2016, his start time for Saturdays was changed due to his race, sex,
and age and, on the additional basis of retaliation (current EEO complaint), and,
when:
3. On November 26, 2016, during the entire month of December 2016, and, on or
about January 16, 2017, he was denied overtime and / or improperly scheduled;
and
4. On unspecified dates, management improperly disclosed, on the regular work
schedule, information about his OWCP injury / claim.

The Agency dismissed claim 2 for untimely EEO contact since the hours were changed in 2014.
The Agency accepted claims 1, 3 and 4 for investigation.

The pertinent record reveals the following facts.

Claim 1 – Placed on Emergency Placement

Complainant was employed as a full-time Tractor Trailer Operator. He reported to the Manager,
Transportation and Networks (African-American, Black, Female, Age 43) (S1) and a second
supervisor, Transportation Operations (African-American, Black, Female, DOB 9/21/1959) (S2).

Complainant is a Tractor Trailer Operator, who is on limited duty, due to several on-the-job
injuries. On July 22, 2016, Complainant asked the dispatcher to assign him an air-conditioned
truck. He is authorized to have an air-conditioned truck pursuant to his Family Medical Leave
Act medical stipulations in circumstances of extreme heat. The dispatcher refused to assign
Complainant an air-conditioned truck. Other drivers requested air conditioned trucks and were
granted the trucks with no problems.

Complainant disputes that he refused to operate the run that was assigned to him. Complainant
voiced his opposition. There was some discussion about the denial of his request for an air-
conditioned truck.

The Transportation Manager (S1) intervened and called the Postal Police.

The Postal Inspector investigated and advised that management should have provided
Complainant with an air-conditioned truck.

On July 22, 2016, the Acting Supervisor (S2) sent Complainant a letter notifying Complainant of
his decision to place Complainant on Emergency Placement, effective July 22, 2016. The stated
reason was “You created a hostile work environment by refusing to operate your assigned run
and jumping out of your chair into the manager’s face, and yelling you were going to stop her
(S1) from discriminating against you.” In a second letter issue on that same day, the Acting
Supervisor scheduled an investigative interview for July 26, 2016. During the interview,
Complainant denied that he had been loud or that he got in the face of the manager.

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The Agency has a “Zero Tolerance” policy, issued by the Atlanta Performance cluster on
February 29, 2016. In this document, management stated that it would not tolerate any act of
violence, any threats (actual, implied or hidden) and any bullying or intimidating
communications.

Complainant claimed that he was subjected to unlawful harassment and that the supervisor’s
actions were punitive in nature and scope. Although Complainant states that he is a victim of
discriminatory animus, he also stated that “no other employee under the supervision of the
Transportation Manager has been treated like [he has been.]” He is not the only African-
American male.

In addition, on appeal, Complainant asserts that the dispatcher was ordered to refuse to assign to
him an air-conditioned truck and he was subsequently suspended without cause when he voiced
opposition.

Claim 2 – Start Time Changed

Effective August 9, 2014, Complainant was given an earlier start time on Saturdays pursuant to a
PS Form 2499 and a new bid.

Complainant averred that management offered no legitimate positive business reason for
changing his work time. Complainant asserts that the hours were changed out of vindictiveness
and to avoid paying him Sunday premium pay.

He continued to receive Sunday premium pay as though his schedule had not been changed. The
pay rate was eventually corrected in October of 2016.

Complainant contends that three others were treated better than he was treated. The record,
however, shows that the start time of two of the comparison employees was also changed. All of
the comparators are male and two are of the same race as is Complainant.

Claim 3 – Denied Overtime

He testified that he suffered an on-the-job injury on May 4, 2008. He says that he cannot drive
for more than four hours and is unable to lift over 35 pounds. Complainant testified that he is on
the “Volunteer Overtime List. Both managers acknowledged that they were aware of
Complainant’s four-hour driving restriction. Complainant claimed that he was not allowed to
work overtime during the entire month of December 2016 and that he was denied off-duty
overtime for Saturday, January 16, 2017. He stated that he did not work on January 14, 2017, his
“MLK holiday.”

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The Time and Attendance Collection Systems (TACS) document shows Complainant’s Overtime
Code. The document indicates that Complainant worked overtime on December 3, 6, 14 and 22,
2016. He also received holiday pay for January 14, 2016 and worked eight hours of overtime on
January 16, 2017.

Because Complainant has a four-hour driving restriction, S2 averred that she did not put
Complainant on the overtime schedule because there were no four-hour runs. All of the available
runs were 8-hours in duration.

Claim 4 – Reference to his OWCP Claim on the Work Schedule

The record includes the weekly schedules for November 2016, December 2016, and for January
2017. S2 testified that she was the management official who made the schedules with the
OWCP notations. The letters “OWCP” appear above Complainant’s name for the schedules in
December 2016 and January 2017. The Manager (S2) acknowledged that she placed the letters
“OWCP” (Office of Workers’ Compensation Programs) under Complainant’s name on the
weekly work schedule. She recalled that, while preparing for a new supervisor, she wanted to
make the transition as easy as possible. She added the term “OWCP” to the schedule to alert the
new supervisor to be mindful not to violate the employee’s work restrictions. After Complainant
raise his concern, S2 stopped the practice in January 2017.

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). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

Agency Decision

The Agency concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. The Agency found that claim 1 failed because Complainant did not
identify any similarly situated employees who were treated better. With regard to claim 2, the
Agency found no discrimination, reasoning that two of the comparators belonged to the same
race as Complainant. All three of the comparators are men, as is Complainant. One is
substantially younger than Complainant. As to that younger individual, the Agency found no
discrimination because the evidence showed that comparator’s start time was also changed.

Next, the Agency found that Complainant was not a qualified individual with a disability. The
Agency found that the evidence did not establish that Complainant was substantially limited in a
major life activity or was regarded as having a disability2.

2 The Agency stated that the disability claim was not considered under a failure to accommodate
theory since Complainant did not contend that he requested or was denied job accommodations.
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The Agency concluded that he did not have an actual disability because he did not prove that he
was unable to work in a class of jobs or a broad range of jobs in various classes as compared to
most people having comparable training, skills and abilities.

With regard to claim 3, the Agency found that Complainant was not similarly situated to his
comparators in terms of his scheduled days off, job duties, work capacity and other relevant
circumstances. S2 testified that no individuals were treated more favorably than Complainant
under similar circumstances.

With regard to Claim 4, the Agency found the evidence did not show that anyone outside
Complainant’s protected classes was treated better.

The instant appeal followed.

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”).

As an initial matter, on appeal, Complainant objects to the fact that the final agency decision was
issued by the Postal Service’s National Equal Employment Opportunity Investigative Service
Office (NEEOISO). However, after careful consideration of Complainant’s arguments, we
conclude the final decision was issued pursuant to the requirements of 29 C.F.R. Part 1614.

Race, Color, Sex and / Retaliation and Age Discrimination

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
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. See 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. See Texas Dep’t 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 a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
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Retaliation is suggested in this case because Complainant was put on emergency placement after
he requested an air-conditioned truck in compliance with his FMLA stipulations and because of
his prior EEO complaints against the named responsible management officials.

Even assuming that Complainant established the elements of his prima facie claims, the Agency
articulated a legitimate, non-discriminatory reason for its actions. The record shows he was put
on emergency placement because the supervisor felt threatened by his strong verbal objections to
being denied an air-conditioned truck. His hours were changed to better align work hours to the
work load. He was provided some overtime, but was not assigned other runs, because the
available runs were longer than his medical restrictions allowed, or because Complainant stated
that he wanted to be with his family which was visiting from out of town.

He did not offer evidence that these reasons were a pretext for unlawful discrimination.

Disability Discrimination

The Rehabilitation Act Section 501, as amended, applies the standards in the Americans with
Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for
employment. The ADA says that an employer may not “discriminate against a qualified
individual with a disability.” Disability is defined as pertaining to an individual who has a
physical or mental impairment that substantially limits one or more of the major life activities
“or is regarded as having such impairment; a record such an impairment or being regarded as
having such an impairment,” 29 C.F.R. § 1630.2(g). An individual may establish coverage under
any one or more of these. Employers are also required to provide reasonable accommodation for
qualified individuals with a known disability.

With regard to his disability claims, as a threshold matter, we consider whether Complainant was
disabled within the scope of the Rehabilitation Act. The Agency addressed the threshold issue of
whether Complainant established that he had a permanent medical condition that substantially
limited a major life activity. The Agency concluded that he did not establish that he was an
individual with a disability. For purposes of our analysis, we assume, without finding, that
Complainant met his burden of showing that he is a qualified individual with a disability.

There is no evidence, however, that he was treated differently than others who had no known
disability. The evidence shows that he had been provided some overtime when there were
opportunities within his medical restrictions. We find that Complainant failed to show that the
Agency discriminated against him based on his medical condition. In addition, there appears to
be no request for, or a denial of, reasonable accommodation under the Rehabilitation Act.

For the reasons and the statement of law in this decision, we find that Complainant did not
establish, by a preponderance of the evidence, that he was the victim of unlawful discrimination
or a hostile work environment. We find that the Agency’s Decision is supported by the record.
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CONCLUSION

Accordingly, we AFFIRM the Agency’s finding for the reasons stated herein.

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 tends 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.
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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

October 23, 2018
Date