Charlie O.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Jun 6, 2018

0120161521 (E.E.O.C. Jun. 6, 2018)

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

Charlie O.,1
Complainant,

v.

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

Appeal No. 0120161521

Hearing No. 560-2014-00418X

Agency No. 6X-000-0026-13

DECISION

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 March 14, 2016, 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. For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND

Until February 22, 2013, Complainant had worked as a Mail Handler at the Processing and
Distribution Center (P&DC) in Topeka, Kansas. In early February 2013, he received a notice
that he would be reassigned involuntarily to the position of Computer Line Production Operator
at the National Print Center (NPC), also located in Topeka. Investigative Report (IR) 261. He
reported to work at his new location on February 28, 2013, but did not return thereafter, claiming
that the duties of the Operator position to which he had been reassigned exceeded his medical
restrictions. IR 208.

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 October 3, 2013, Complainant filed an EEO complaint in which he alleged the Agency had
discriminated against him on the basis of disability (Osteoarthritic Joint Disease in both knees)
when: 1) since February 28, 2013, the Agency failed to provide him with a reasonable
accommodation; and 2) on March 5, 2013, he was sent home after informing management that
he could not perform the duties of his position. His complaint also included an allegation that his
claim before the Office of Workers’ Compensation Programs (OWCP) had been denied on June
18, 2013. The Agency initially dismissed the complaint, but in * * * v. United States Postal
Service, EEOC Appeal No. 0120140572 (April 9, 2014), the Commission reversed the dismissal
in part and remanded issues 1 and 2 for further processing.2

In accordance with our order, the Agency investigated the complaint and provided Complainant
with a copy of the investigative report and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a
motion for a decision without a hearing on December 15, 2014. Complainant filed a response to
the Agency’s motion on January 15, 2015. The AJ assigned to the case issued a decision without
a hearing on February 26, 2016.

In her decision, the AJ found that it was undisputed that as of February 22, 2013, the Topeka
P&DC was closed. As a consequence of the closure of the P&DC, Complainant was notified in
January 2013 that he would be involuntarily reassigned to a different facility and was asked to
choose a new work assignment. He was given a list of 90 positions from which to make his
choice. He noted his top 3 choices, and was assigned to his first choice, the Computer Line
Production Operator position at the NPC.

Complainant suffered an on-the-job injury to his right knee on November 5, 1987, and to his left
knee on May 15, 1996. IR 183. He was eventually diagnosed with osteoarthritis in both knees
and was advised in March 1999 that the duration of his condition would be indefinite. IR 180-
81. As of December 18, 2012, the date of his most recent medical assessment prior to his
reassignment to the NPC, Complainant’s activities were restricted to lifting up to 20 pounds, four
hours of standing and four hours of sitting in an eight-hour day. Complainant’s physician also
indicated that he could work up to eleven hours per day with the foregoing sitting and standing
restrictions in place, as long as the pain remained tolerable. IR 343. Complainant averred that
his condition caused him to experience limitations in his personal life, related to such activities
as standing for long periods of time, climbing stairs, mowing grass, walking for long distances,
or playing ball with his grandchildren. IR 183.

The duties of the Computer Line Production Operator included: rolling 1,100-pound paper
spools a distance of 15 feet from the storage area to the machines; positioning the spools so they
can be placed upon the spindles; climbing a two-step ladder to position the spools; removing and
disposing of the old spools; tighten spools using a wrench; splicing two spools together; and

2 Complainant also alleged that the Agency had discriminated against him by causing him to be
denied OWCP benefits. The Commission affirmed the dismissal of this portion of his claim,
finding that it constituted a collateral attack upon the OWCP process.
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supplying ink to the machines. IR 182, 184. Complainant stated that he had to perform these
procedures repetitively over the course of an eight-hour work day. IR 184. Complainant further
averred that because of his condition, he could not remove or replace old spools, climb the
ladder, or crawl under the machines to free paper jams. IR 182. He stated that although he tried
to perform the duties on his first day, he found climbing the ladder with his bad knees very
painful and had a problem aligning the hole of the new spool with the spindle. IR 185.

Complainant did not report to work after February 28, 2013. IR 209. He averred that when he
woke up the next morning, his knees hurt so badly that he could not get out of bed or walk. IR
185. On March 5, 2013, while on annual leave, he returned to the NPC and met with the NPC
Manager, the Printing Coordinator, who was his first-line supervisor (S1), and his previous first-
line supervisor, who was now the Computer Maintenance Supervisor (CMS). IR 207-08.3 At
that meeting, which lasted for approximately thirty minutes, Complainant requested work that
fell within his restrictions of standing for four hours, sitting for four hours, and lifting no more
than twenty pounds. IR 186-87. The NPC Manager averred that he had not been told of
Complainant’s condition or his restrictions before the meeting on March 5, 2013. IR 206-07.

According to Complainant, a conversation took place during this meeting in which the CMS
suggested to the NPC Manager that a chair be placed by the rollers so that Complainant could
place the labels that came off the rollers into boxes from a sitting position, and that the NPC
Manager refused to adopt this suggestion. IR 189. The NPC Manager denied that this
conversation took place and the CMS averred that he could not recall the conversation. IR 209,
251.

When asked by the EEO investigator what reasons the NPC Manager gave for not granting his
accommodation, Complainant averred that the Manager “blew up,” making comments like: “I
don’t need him here;” “I have nothing for him here;” “I don’t need another one like him here;”
and “He needs to go.” IR 188-89, 191, 194. The NPC Manager reiterated that he did not make
these comments or any comments referring to Complainant’s restrictions, that until he met with
Complainant at the March 5, 2013 meeting, he was unaware that Complainant was under any
medical restrictions, and that Complainant had not asked for reasonable accommodation prior to
that meeting. IR 209-10, 219. Neither S1 nor the CMS, both of whom were present at the
meeting, could recall the comments. IR 239, 251.

Complainant averred that after the meeting on March 5, 2013, the NPC Manager sent him home,
telling him that no work was available. IR 190-92. The NPC Manager denied telling
Complainant not to return to work. IR 214. He averred that after the meeting, he had asked
Complainant to provide him with medical documentation to substantiate his claim that he was
unable to perform the essential functions of the Operator job, and that in response to his request,
Complainant had given him the doctor’s note that was written in December 2012. IR 209. The
NPC Manager then requested updated medical information because the note from December

3 Complainant mistakenly averred that this meeting took place on March 18, 2013. IR 186, 191.
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2012 gave no indication as to how long Complainant’s restrictions would be in place. IR 209,
217, 343.

On March 12, 2013, Complainant submitted a note from his doctor stating that he could return to
work on March 18, 2013, with no restrictions. IR 342. According to the NPC Manager,
Complainant continued to insist that he could not perform the duties of the job, despite his
physician’s note stating otherwise. This inconsistency prompted the NPC Manager to make four
attempts between May and July 2013 to schedule Complainant for a fitness for duty exam
including a functional capacity evaluation, none of which were successful. IR 207-08.

It was not until September 3, 2013, that Complainant’s doctor reported that he was to be kept
under the same restrictions that were in place in December 2012. IR 183, 340, 350-51. The
doctor had already notified the Agency in a note dated August 27, 2013, that the requirements of
the Operator job exceeded Complainant’s physical capabilities. IR 341. Nevertheless, the NPC
Manager continued to look for positions to which Complainant could be reassigned, noting that
the search was still continuing as of October 28, 2013, and that Complainant was never formally
removed from the Agency. IR 210, 222.

Complainant submitted a request for a reasonable accommodation to the Disability Programs
Office. IR 336-37. He averred that on March 11, 2014, he met with the District Reasonable
Accommodation Committee (DRAC) and had reported to the DRAC that the duties of the
Operator position were beyond his medical restrictions. IR 193, 195. In a letter to Complainant
dated May 20, 2014, the NPC Manager acknowledged that Complainant could no longer perform
the essential functions of the Operator position. The NPC Manager noted that he had continued
to search for vacant positions for which Complainant was qualified, but that no such vacant
positions were available. The NPC Manager also indicated that as a reasonable accommodation,
the Agency would consider reassigning Complainant to any vacant funded position nationwide.
IR 227, 337.

The AJ determined that, assuming Complainant is an individual with a disability, he failed to
establish that the requested accommodation was reasonable. She found that it was undisputed
that he was unable to perform the essential functions of his position with or without reasonable
accommodation. She noted that reassignment to a vacant position was the only form of
accommodation available to Complainant. The AJ then found that Complainant had failed to
identify a vacant, funded position for which he could perform the essential functions with or
without a reasonable accommodation to which he could be reassigned. Although Complainant
had identified the position of “packer/shipper,” the AJ found that there were no vacant positions
and that Complainant’s claim that his seniority should enable him to replace employees already
in those positions was unavailing, as the Agency was not required to bump an employee in order
to create a vacancy. Complainant failed to show that there was a vacant position. The AJ found
that the Agency had not failed to provide Complainant with a reasonable accommodation.

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However, the AJ noted that the alleged comments of the NPC Manager in the March 5, 2013
meeting could be construed as direct evidence of discrimination. Complainant claimed that the
NPC Manager said, “I don’t need him here;” “I have nothing for him here;” “I don’t need
another one like him here;” and “He needs to go.” The AJ found that, taking Complainant’s
version of the facts as true, these comments showed that the Agency acted with both
discriminatory and nondiscriminatory intent when it sent Complainant home from work on
March 5, 2013. She applied a mixed-motive analysis to Complainant’s claims and found that the
Agency had shown that Complainant would have been sent home from work in the absence of
discrimination, as he could not perform the essential functions of the position, there was no
available work at that time, and the Agency was not required to create a new position or to
remove another employee from his/her position in order to provide work for Complainant.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant had
not proved that the Agency subjected him to discrimination as alleged. Complainant filed the
instant appeal.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. We find that the AJ properly determined that this case was appropriate for
a decision without a hearing.

Agencies are required to reasonably accommodate the known limitations of qualified individuals
with disabilities unless they can show that doing so would result an undue hardship upon their
operations. See 29 C.F.R. §§ 1630.2 (o), (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. Department of Agriculture,
EEOC Appeal No. 0120120400 (December 3, 2015).

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In order to raise a claim of failure to provide a reasonable accommodation under the
Rehabilitation Act, Complainant must first establish that he is an individual with a disability. An
“individual with a disability” is one who: (1) has a physical or mental impairment that
substantially limits one or more major life activities; (2) has a record of such impairment; or (3)
is regarded as having such an impairment. Melanie F. v. Dept. of Homeland Security, EEOC
Appeal No. 0120150163 (May 19, 2017) citing 29 C.F.R. § 1630.2(g). In this case, the
Disability Programs Office had determined that Complainant was an individual with a disability
in that he had been diagnosed with osteoarthritis in both knees which substantially limited his
major life activities of sitting, standing, walking, and lifting more than twenty pounds.

Next, Complainant must show that he is a qualified individual with a disability. A qualified
individual with a disability is an individual with a disability who satisfies the requisite skill,
experience, education, and other job-related requirements of the employment position such
individual holds or desires, and who, with or without reasonable accommodation, can perform
the essential functions of such position. Julius C. v. Dept. of the Air Force, EEOC Appeal No.
0120141294 (June 16, 2017) citing 29 C.F.R. § 1630.2(m). Complainant himself had insisted
that he had been unable to perform the essential functions of the Computer Line Production
Operator position since his first day of work on February 28, 2013. Complainant’s affidavit,
together with the various medical notes and correspondence from the NPC Manager, made it
clear that Complainant could not perform the essential functions of the Operator position, either
with or without reasonable accommodation.

Although this issue of material fact was in dispute, owing to the doctor’s March 12, 2013 note
that Complainant was no longer under medical restrictions, that dispute was resolved in
September 2013, when Complainant’s doctor submitted a new note documenting that
Complainant was still under the same restrictions he had been under prior to March 12, 2013.
The NPC Manager readily agreed that reassignment was the only viable option for Complainant,
and had continued his efforts to reassign Complainant to a position whose essential functions he
could perform. We therefore agree with the AJ that the Agency properly considered
reassignment as a reasonable accommodation for Complainant’s disability.

We note that the AJ found that the comments that Complainant attributed to the NPC Manager at
the March 5, 2013 meeting constituted direct evidence of disability discrimination. The AJ
consequently invoked the mixed motive analysis, under Price Waterhouse v. Hopkins, 490 U.S.
228 (1989). The AJ ultimately concluded that the Agency had shown by clear and convincing
evidence that Complainant would have been sent home from work on March 5, 2013 in the
absence of discrimination. Although there is a dispute as to whether or not those comments were
made by the NPC Manager, we find that, taking Complainant’s version of the facts as true, the
Agency demonstrated that it would have taken the same actions even in the absence of those
comments, as Complainant would have been sent home for lack of work he could perform within
his restrictions regardless. We find that the AJ properly determined that Complainant could not
show otherwise.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s decision without a hearing finding that Complainant
had not established that he was discriminated against as alleged.

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).
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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. 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

June 6, 2018
Date