Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Apr 30, 2015

01-2013-0625-0500 (E.E.O.C. Apr. 30, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120130625

Agency No. 4F-900-0074-12

DECISION
On November 28, 2012, Complainant filed an appeal from the Agency’s November 13, 2012
final decision 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. The Commission deems the appeal
timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier
Technician at the Beverly Hills Post Office in Beverly Hills, California. On April 3, 2012,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
basis of disability when:

1. Management would not accept his doctor’s note and would not pay him for an
absence on December 3, 2011;
2. He was taken off his route and made to sit at a table all day reading postal
manuals despite his ability to perform his route; and
3. He was denied the opportunity to perform his assignment within his abilities and
instead given a new job offer for only 5 hours per day.1

1 The Complainant contained an additional allegation that the Agency dismissed for failure to
state a claim. Complainant has not challenged that dismissal on appeal and we will not review
it further.
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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). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he was subjected
to an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
Claim 1 (Not Paid For Absence)

The Agency explains that Complainant was charged with leave without pay, as authorized by
the Agency’s Employee and Labor Relations Manual, for December 3, 2011, because he
initially failed to provide specific medical documentation of his need to take sick leave on that
day. The documentation provided indicated only generally that Complainant had received
medical treatment. When Complainant ultimately provided medical documentation for the
absence, he was not immediately paid for the day in question because in the interim he had
filed a grievance over the matter. According to the Agency, payment could not be made until
the grievance was resolved. This is a legitimate, nondiscriminatory reason for the Agency’s
action. Complainant asserts that he provided medical documentation as required. However,
review of the documentation in the record indicates that it is not specific as to the medical
grounds that necessitated sick leave.

Claim 2 (Removed From Route)

According to the Agency, Complainant was taken off his route when his supervisor (S1)
learned that his medical restrictions, resulting from a back injury, did not permit him to
continue to perform those duties. This is a legitimate, non-discriminatory reason for the
Agency’s actions. Complainant argues that S1 mistakenly concluded that he could not perform
the duties of his position because his medical restrictions barred him from any “stooping.”
Complainant asserts that he could perform the duties of his position by squatting rather than
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stooping. The record evidence does not establish that the Agency’s stated reasons for its action
were a pretext designed to conceal discriminatory animus. The record supports S1’s
conclusion that Complainant could not deliver his assigned route with performing stooping
motions. S1 denies that Complainant ever told her that he could function with his medical
restrictions by squatting rather than stooping.

Claim 3 (Five Hour Job Offer)

The Agency’s reason for making a new job offer is that, as discussed under Claim 2 above,
Complainant’s medical restrictions required that he be removed from his previously assigned
route. This is a legitimate, nondiscriminatory reason for the Agency’s actions. As previously
discussed, Complainant did not adduce sufficient evidence to establish that it was a pretext
designed to conceal discriminatory animus.

Finally, to the extent Complainant is alleging that the Agency violated the Rehabilitation Act,
we note that that the Rehabilitation Act does not require the Agency to create jobs. Thus
Complainant is not entitled to a limited duty position under the Rehabilitation Act. The
creation of limited duty positions is consistent with the Agency’s obligations under the Federal
Employees Compensation Act as a means of returning injured employees to work. Complaints
about offers of limited duty positions that are inconsistent with medical restrictions lie with the
Department of Labor’s Office of Workers’ Compensation Programs.

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

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
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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

Date
April 30, 2015