Gerald L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Dec 20, 2019

0120182696 (E.E.O.C. Dec. 20, 2019)

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

Gerald L.,1
Complainant,

v.

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

Appeal No. 0120182696

Hearing No. 550-2012-00212X

Agency No. 1F-946-0033-11

DECISION

On July 30, 2018, 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
June 28, 2018, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq., and 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.

ISSUES PRESENTED

Whether the Agency correctly determined that Complainant was not subjected to a hostile work
environment or denied a reasonable accommodation based on race (African-American), sex
(male), disability (physical and mental) and reprisal.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle
Operator at the Agency’s Oakland Processing and Distribution Center in Oakland, California.
Complainant alleged that A1, Manager, Transportation and Networks, A2, Senior Plant Manager
S1, Manager, Transportation and Networks, and B1, Supervisor were the individuals who
discriminated against him. On January 2, 2012, Complainant filed an EEO complaint alleging that
the Agency harassed and discriminated against him on the bases of race, sex, disability, and reprisal
as set forth above when:

1. Since October 6, 2011, he has been belittled, criticized and closely monitored; and
2. Since October 6, 2011, he was denied a reasonable accommodation and required to
work beyond his medical restrictions.

The record indicates that Complainant was diagnosed with osteoarthritis of the knee. Medical
documentation indicated that Complainant was able to participate in a modified work program,
starting May 27, 2011, and continuing through December 31, 2011, with the following
restrictions/limitations:

- Bending, twisting, Climbing stairs: Intermittently (up to 50% of shift);
- Squatting, climbing ladders or scaffolds: Not at all;
- Extending/flexing neck, using either hand, reaching above shoulder: Frequently (up to
75% of shift);
- Lift/Carry 0-25 lbs.: Frequently
- Lift/carry 26-40 lbs.: Intermittently
- Lift/carry 41-100 lbs.: Occasionally (up to 25% of time)
- Standing: 2 minutes duration, 30 minutes/hr., 8 total hours
- Walking: 55 minutes duration, 60 minutes per hour, 8 total hours
- Driving: 55 minutes duration, 60 minutes per hour, 8 total hours

The restrictions/limitations also indicated that if modified work was not available, Complainant
was unable to work for the duration of the period indicated.

When asked to describe the incident(s) that led to him to alleged that since October 6, 2011, he
had been belittled, criticized, and closely monitored, Complainant stated that the Agency allowed
other workers to have helpers, and refused to allow him to have a helper. He claimed that after he
filed an EEO complaint, the Agency increased the harassment, and hostility towards him.
Complainant was asked to provide the date on which each incident occurred, but he failed to
provide any dates. He indicated that C1, a Motor Vehicle Operator witnessed this harassing
conduct. C1 testified that he did not witness Complainant being harassed on or after October 6,
2011, by being belittled, criticized, or closely monitored, but he did state that, unlike Complainant,
he was given a helper when he worked on FedEx dispatches.

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When asked to describe the incident(s) that led him to allege that since October 6, 2011, he had
been denied reasonable accommodation and worked beyond his medical restrictions, Complainant
responded that “the Agency allowed other workers to have helpers and refused to allow me to have
a helper.” According to Complainant, this occurred from October 6, 2011, to present, and B1,
along with S1, A1 and A2 took these actions.

According to S1, Complainant previously made a request for accommodation in August 2011,
which was approved, but Complainant refused the offer. S1 explained that Complainant requested
a Mail Handler to assist him with his FedEx dispatches, but S1 maintained that it was not feasible
due to a lack of man-hours, therefore, management offered, as an alternative, that Complainant be
placed in a job with no FedEx dispatch duties. Complainant would instead be tasked with collecting
mail at associate offices, which would have complied with his medical restrictions, but
Complainant refused this accommodation, because he wanted to continue dispatching FedEx mail
with the assistance of a mail handler. Finally, the Agency stated that there was no evidence that
Complainant made another request for accommodation on or after October 6, 2011.

At the conclusion of the investigation, the Agency provided Complainant a copy of the report of
investigation and notice of his right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge. 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 Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

CONTENTIONS ON APPEAL

Among other things, Complainant contends that the Agency failed to provide a reasonable
accommodation for his back condition.

The Agency, in pertinent part, asks that its final decision be affirmed.

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 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”).

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Reasonable Accommodation

To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he
is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified”
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide
him with a reasonable accommodation. See, e.g., Bill A. v. Dep’t of the Army, EEOC Appeal No.
0120131989 (Oct. 26, 2016). An individual with a disability is “qualified” if he or she satisfies the
requisite skill, experience, education, and other job-related requirements of the employment
position that the 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). Reasonable
accommodation includes modifications to the work environment or to manner or circumstances
under which the position held or desired is customarily performed, that enable a qualified
individual with a disability to perform the essential job functions. 29 C.F.R. §1630.2(o)(ii).

Assuming, arguendo, that Complainant is a qualified individual with a disability, we do not find
that he was denied a reasonable accommodation when the Agency did not let him have a helper to
deliver FedEx dispatches. The Agency offered Complainant a position that did not require FedEx
dispatch duties. He, instead, would have collected mail at associate offices, which would have
complied with his temporary medical restrictions. Although this may not have been Complainant’s
first choice, an employee is entitled to an effective reasonable accommodation, not necessarily the
accommodation of their choice. Lynette B. v. Dep’t of Justice, EEOC Appeal No. 0720140010
(December 3, 2015). As noted above, Complainant denied the Agency’s offer, and there is no
evidence that on or after October 6, 2011, he requested a different accommodation.

Hostile Work Environment

To establish his claim that he was subjected to a discriminatory hostile work environment,
Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected
to harassment in the form of unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on his statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating, hostile, or offensive work
environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002
(March 8, 1994).

Complainant’s contention that he was subjected a hostile work environment was predicated on his
allegation that he was denied a reasonable accommodation. We, however, determined above that
he was not denied a reasonable accommodation. Therefore, his harassment claim based on the
denial of a reasonable accommodation must also fail. A finding of a hostile work environment is
precluded by our determination that Complainant failed to establish that the actions taken by the
Agency with respect to his accommodation request was discriminatory. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000).
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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.
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“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

December 20, 2019
Date