0120160530
05-16-2018
Felton S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Felton S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160530
Hearing No. 560-2015-00079X
Agency No. 1G-731-0012-14
DECISION
On November 3, 2015, 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 September 28, 2015 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a full-time Maintenance Mechanic for Mail Processing Equipment at the Oklahoma City, Oklahoma Processing and Distribution Center of the Agency. On June 13, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (conditions of both knees and back) and reprisal for prior protected EEO activity (December 2012 EEO complaint) when:
1. on March 26, 2014, the Agency denied him reasonable accommodation, and
2. on April 6, 2014, the Agency issued him a seven-day suspension alleging failure to follow instructions and improper conduct. 2
The Agency accepted Complainant's claims for investigation.
Investigation
Complainant's Statement
During the EEO investigation, Complainant stated that he is a 90% disabled veteran, but does not have any medical restrictions in his work or personal life. He stated, per medical recommendation, he requested a bike, stool, tools, knee pads, and closer parking as accommodations at work. Complainant stated that the Agency provided him a bike and adjustable stool. He stated that the provided accommodations were not effective because the Agency failed to comply with regulatory timeframes and to engage in the interactive process.
Regarding claim (1), Complainant alleged that two days in a row, a bike was not in Tools and Parts as is required by agreement between the Agency and Union. Complainant stated that a manager got a bike to him within 20 minutes. Complainant stated that occasionally the bike is not where it should be and management states it will get it to him. (Typically, management states a prior tour failed to return the bike to Tools and Parts.) However, Complainant stated that a bike should always be in Tool and Parts and available to him.
As to claim (2), Complainant stated that he was not threatening to management. He stated that he filed a grievance with the union and the suspension was reduced to a letter of warning, but there should be no disciplinary action given. Complainant stated that another Maintenance Mechanic (C1) and a Supervisor (C2) have loud discussions with other employees and have not been disciplined.
Agency's Response
The Supervisor of Maintenance Operations (S1) stated that he was aware of Complainant's prior EEO activity as he was a witness in that matter. S1 stated that Complainant performs maintenance on mail processing equipment, including cleaning with a vacuum and replacing belts, rollers, and other hardware using hand tools as needed. S1 stated that Complainant is "fully able" to perform his duties and does not have any work restrictions. S1 stated, in July 2012, the Agency granted Complainant use of an adjustable stool to sit while working on some tasks and a bike to move from one location to another.
S1 stated, on March 26, 2014, at 6:30 a.m., Complainant informed him that there was no bike available in Tools and Parts. S1 stated that Complainant was very loud and argumentative, and wanted the Agency to buy him his own bicycle to ensure that it was always available. S1 stated that he told Complainant to just call him from Tools and Parts when he cannot locate a bike, and he would get a bike and deliver it to him there. S1 stated that Complainant returned to his workstation rather than waiting in Tools and Parts. S1 stated that he delivered a bike to Complainant within 15 minutes from his request. S1 stated that the Agency did not deny Complainant accommodation.
For claim (2), S1 stated that he issued Complainant a suspension because he approached him in a very "loud and abusive manner" when he could not find a bike. S1 stated that unavailability of a bike has occurred in the past and management has always located a bike for Complainant to use. S1 stated that management tried to resolve the matter with Complainant quietly, but he insisted on acting in what some viewed as a threatening manner, attempting to evoke a reaction from management. S1 stated that the suspension was based on Complainant's actions and behavior. S1 stated, through the negotiated grievance process, the suspension was reduced to a letter of warning. S1 stated that, in January 2013, the cited comparator, C1, lost his temper and raised his voice, and he requested a 14-day suspension for him. S1 stated that he is not aware of any misconduct by C2.
The Maintenance Manager (S2) stated that Complainant requested accommodation on June 11, 2012, and the Agency granted use of a bike and an adjustable stool on July 18, 2012. For (1), S2 stated that the bike was not available at its normal place so management told Complainant to sit and it would retrieve the bike so he did not have to walk additional steps. S2 stated that Complainant did not listen and became loud. S2 stated that management provided Complainant with a bike at his work location shortly after his request. Subsequently, on the same day, Complainant submitted a leave request stating his knees hurt. S2 stated that they work in an 850,000-square foot building and the bike allows Complainant to do less walking when working and going to lunch and on breaks.
Pertinent Record
The investigative record contains a letter, dated July 18, 2012, from the Senior Plant Manager (S3) granting Complainant use of an adjustable stool and bike as reasonable accommodation. Also, the record contains a Return to Work Limitations form, dated March 14, 2012, stating "Please allow use of bike @ work and adjustable stool to help reduce stress on knees and limit pain." The record also contains a Notice of Suspension of 7 Days, citing "Failure to Follow Instructions" and "Conduct" regarding the March 26, 2014 incident where Complainant left Tools and Parts while awaiting a bike and became belligerent with S1. Finally, the record contains a Notice of 14 Day Suspension, dated January 31, 2013, for the comparator, C1, for improper conduct and absent without official leave.
Post-Investigation
Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation, and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or an immediate final decision from the Agency. Complainant timely requested a hearing, but subsequently withdrew his request. Consequently, 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 or that the Agency denied him accommodation. The Agency found that Complainant failed to show comparators who are similarly situated or that the legitimate, nondiscriminatory reasons articulated by the Agency are pretextual. The instant appeal from Complainant 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").
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p).
Complainant stated that he is a 90% disabled veteran and has knee and back conditions, but that he does not have medical restrictions at work or home. On a Return-to-Work form dated March 14, 2012, Complainant's physician stated, "Please allow use of bike @ work and adjustable stool to help reduce stress on knees and limit pain." On June 11, 2012, Complainant requested the cited accommodations and, on July 18, 2012, the Agency granted him use of a bike and an adjustable stool. Complainant stated that occasionally the bike he used was not where it should be (in Tools and Parts), and he had to walk and look for the bike or ask his supervisor to locate it. The Agency stated that Complainant can call his supervisor, S1, from Tools and Parts to inform him that he cannot locate the bike and S1 will deliver the bike to him. The Agency stated that it informed Complainant of this procedure, but on March 26, 2014, he did not follow it and walked more than needed. Complainant acknowledged that, on March 26, 2014, S1 delivered a bike to him within 20 minutes of his request. Notwithstanding, Complainant requested a bike solely for his use that would remain in Tools and Parts except when he was using it.
Even if we assume Complainant is an individual with a disability who is entitled to accommodation, we remind Complainant that he is not entitled to the accommodation of his choice. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, question 9 (October 17, 2002) ("The employer may choose among reasonable accommodations as long as the chosen accommodation is effective."). In this case, we decline to find that the Agency's failure to purchase a bike solely for Complainant's use while at work, lunch, or break is required. The record shows that the bike was usually in its designated location and occasionally Complainant could not locate the bike. However, during those occasions, he could contact his supervisor who would locate the bike and deliver it to him. Complainant acknowledged that S1 had a bike to him within 20 minutes on March 26, 2014. We find the Agency did not deny Complainant accommodation.
Disparate Treatment
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, non-discriminatory reason for its actions. See Texas Department 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); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, non-discriminatory reasons for the matters at issue. For claim (2), the Agency stated that it issued Complainant a suspension for "failure to follow instructions" and "conduct" during an incident on March 26, 2014 related to his inability to find the bike he used while at work. Essentially, the Agency stated that Complainant's behavior was unnecessary and that the matter could have been addressed quietly. The record shows the Agency reduced the 7-day suspension to a Letter of Warning under the negotiated grievance process, and that one comparator cited by Complainant, C1, was also disciplined for similar behavior. Further, the second cited comparator, C2, was a supervisor and not similarly situated to Complainant. Summarily, we find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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).
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
May 16, 2018
__________________
Date
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.
2 On June 18, 2014, the Agency and Union entered a Step 2 resolution, which reduced the suspension to a Letter of Warning to remain in Complainant's file for one year and then be expunged if he had no further similar disciplinary issues.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120160530
7
0120160530