Cole E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 23, 20160120142325 (E.E.O.C. Nov. 23, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cole E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120142325 Agency No. 1C-151-0011-13 DECISION Complainant appeals to the Commission from the Agency’s final decision dated May 9, 2014, finding no discrimination with regard to his 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND In his complaint, filed on May 11, 2013, Complainant alleged discrimination based on disability (hand laceration) when he was notified by letter dated February 27, 2013, that effective March 4, 2013, his PSE (Postal Support Employee) appointment would be terminated and he would not be reappointed. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing. The Agency thus issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant submitted no brief on appeal. 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. 0120142325 2 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for the alleged termination. During the relevant time period, Complainant was employed as a Transitional PSE Mail Processing Clerk at the Agency’s Pittsburgh P&DC (Processing and Distribution Center) in Pittsburgh, Pennsylvania. He was hired as a PSE effective March 10, 2012, subject to a not to exceed 360-calendar-day appointment. Complainant indicated that he injured his right hand, a torn tendon, over the Labor Day Weekend of 2012, and lost 15-20% of the hand strength and was diagnosed with such conditions in November, 2012. Complainant’s manager indicated that as a PSE, Complainant was required to process mail using automated mail processing equipment or manual methods of sortation and distribution. The manager stated that in January, 2013, she was provided with Complainant’s Duty Status Report indicating his limitations to include: no picking up full mail trays, no pushing APCs, lifting up to 10 pounds, and no jogging mail. Complainant’s supervisor also indicated that Complainant was a mail processing clerk and thus was required to process mail and because he could not use his right hand he was prevented from using automation equipment, lifting trays of mail to feed the machines, or sweeping the machine. Thus, stated the supervisor, Complainant was accommodated to work on the manual operation casing mail. Complainant admitted that he was accordingly accommodated with a light duty job assignment. The manager stated that she decided not to renew Complainant’s appointment which expired on March 4, 2013, since he could not perform the functions of his position. It is noted that we do not address in this decision whether Complainant is a qualified individual with a disability. Furthermore, we note that Complainant has not claimed that he was denied a reasonable accommodation and he has not claimed that he was required to perform his duties beyond his medical restrictions. We find that Complainant failed to show that he was treated less favorably than a similarly situated employee under similar circumstances or that the Agency’s reason for not renewing his appointment was a pretext for discrimination. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as he alleged. 0120142325 3 CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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 0120142325 4 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 November 23, 2016 Date Copy with citationCopy as parenthetical citation