0120111867
03-12-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120111867
Hearing No. 450-2010-0258X
Agency No. 4G-752-0086-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 20, 2011, 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 Agency's final order which fully implemented the Administrative Judge's (AJ) decision without a hearing finding no discrimination is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate in Glenville, Texas. On March 18, 2010, Complainant filed a formal complaint alleging that he was discriminated against based on his disability (Post Traumatic Stress Syndrome (PTSD) and Traumatic Brain Injury (TBI)) and/or retaliation (Instant Complaint) when: 1) he was not provided reasonable accommodation during the course of his employment; and 2) On January 19, 2010, by Notice of Separation, he was terminated from the Postal Service.
The record reveals that as part of Complainant's pre-employment medical screening he disclosed that he suffered from a traumatic brain injury as well as post traumatic stress disorder. Complainant's physician indicated that his brain injury had resolved with no impairment, that his PTSD was mild, and that he had no work restrictions. Complainant was hired on January 17, 2009, and worked approximately one day per week as a substitute carrier for a Rural Route. Complainant disclosed to his supervisor (S1) that he had problems learning but had no work restrictions. As such, S1 extended Complainant's training period to nine days which was more than the contractual requirement of three days so that Complainant would have additional time to learn how to case and carry his route. S1 also provided Complainant with auxiliary assistance with casing and carrying his route. He allowed Complainant to report to work thirty minutes earlier than the other carriers to give him more time to prepare the mail for delivery, and he assigned other carriers to assist Complainant in casing his route in order to timely deliver the mail.
In June 2009, Complainant requested a leave of absence for unidentified medical and family problems. The leave was approved even though Complainant did not have sufficient time to participate in the leave program. Complainant returned to work in July 2009. There were no reported problems with Complainant's work during his probationary period until November 23, and 27, 2009 when Complainant was scheduled to work, but failed to report despite the schedule being posted on a weekly basis. S1 called Complainant on several occasions but Complainant's number was not accepting calls. Complainant admitted that his telephone had not been working for a week or two.
Complainant was terminated during his probationary period on January 19, 2010, for failing to report to work as scheduled on November 23 and 27, 2009.
Complainant alleged that the supervisor should have provided a reasonable accommodation to him by reminding him of his work schedule, and, in addition, regularly posting the schedule.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. The Agency filed a motion for summary judgment and Complainant responded. The AJ issued a decision without a hearing finding that Complainant failed to establish a prima facie case of disability discrimination, but established a prima facie case of retaliation. The AJ found that Complainant had a disability within the meaning of the Rehabilitation Act, and to the extent that he was alleging disparate treatment disability discrimination, he failed to establish that he was treated differently than similarly situated individuals outside of his protected class. The AJ found that Complainant failed to establish that any other probationary rural carrier associate outside of his protected class failed to report to work on two occasions and was not likewise terminated. Further, the AJ found that Complainant's reasonable accommodation claim failed as Complainant was accommodated by being given additional training days, being allowed to report to work early to case his route, as well as being given individual assistance by the supervisor. The AJ found that Complainant's contention that the supervisor should have reminded him of his irregular work schedule, in addition to the regularly posted schedule was unreasonable. As Complainant had not had a problem looking at the posted schedule in the past, he had not requested that such an accommodation be given, and it was not apparent that Complainant needed such an accommodation. The AJ found that Complainant's reasonable accommodation claim failed. With respect to the retaliation claim, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant was terminated from his position during his probationary period because he failed to report to work as scheduled.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he made numerous requests for accommodation to S1, which included requests for assistance that would allow him to perform his job faster and assist in remembering his route. He contends that S1 had established an accommodation for Complainant's memory problem by reminding Complainant of his irregularly scheduled work days. Contrary to S1's assertions, Complainant maintains that S1, on July 25, 2009, rated his performance as unacceptable in the categories of "Work Quantity" and "Work Methods." S1 noted on the performance evaluation that Complainant needed to improve his route time and remember to check the schedule. Complainant also contends that the AJ erred in granting a summary decision; in finding that Complainant failed to establish a prima facie case of disability discrimination; in finding that verbal reminders to Complainant would be unreasonable; and/or finding that Complainant failed to show pretext for discrimination.
In response, the Agency, among other things, asserts that the AJ did not err in granting a decision without a hearing. The Agency maintains that Complainant was granted extensive accommodations in the form of training opportunities as a result of his medical conditions and indeed was being given additional time to learn his route and job duties even up to the date of his termination. The Agency argues that the termination was not related to performance issues, but was initiated because of a failure to report. Moreover, the Agency asserts that the Agency provided all accommodations requested by Complainant. The Agency noted that when Complainant failed to appear to work as scheduled on November 23 and 27, 2009, S1 telephoned him to remind him to report to work; however, Complainant's telephone number was non-functional at the time. Although this could not be characterized as an accommodation, the Agency maintains that it shows the Agency's efforts to assist Complainant. According to the Agency, Complainant, far from being the victim of insidious discrimination, was the recipient of a host of benefits, patience, understanding and good will from his supervisor and coworkers.
Further, the Agency maintained that Complainant never requested an accommodation regarding being reminded to come to work and there was no reason to believe that he was unable to make such a request. Lastly, the Agency disputes Complainant's attempt to portray previous reminders to him to check his work schedule as a reasonable accommodation that the Agency abruptly terminated.
With respect to Complainant's retaliation claim, the Agency contends that S1 was not aware that Complainant had any prior EEO activity. The Agency again asserts that the termination was because Complainant failed to report to work on two occasions during the Thanksgiving holidays.
ANALYSIS AND FINDINGS
The Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). 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, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Assuming, for purposes of this decision only, that Complainant is a qualified individual with a disability, we find the record establishes that Complainant was granted every accommodation that he requested, including extra time to train and perform his job. Moreover, he was given advice to help him succeed at his job and was provided assistance with casing and his route. There is no evidence that demonstrates that Complainant ever requested as an accommodation that he be reminded to check the schedule. Even if he was reminded to check the schedule on several occasions in the past, there was no evidence presented that either Complainant or management viewed this as an accommodation or a request for an accommodation. Further, the record shows that S1 attempted to contact Complainant several times when he did not show up for work. We find that Complainant has failed to show that the Agency failed to reasonably accommodate him.
Further with regard to Complainant's allegation that he was subjected to retaliation for requesting an accommodation, we find that even if we assume arguendo that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was terminated from his position because he failed to show up for work on November 23, and 27th. We find that other than Complainant's conclusory statements he has not presented any evidence which suggests that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination.
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 order, because we find that the Administrative Judge's issuance of a decision without a hearing finding no discrimination was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_3/12/15_________________
Date
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0120111867
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111867