0120160711
06-21-2018
Harry E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harry E.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120160711
Agency No. 4C-190-0045-15
DECISION
On December 15, 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 November 25, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant did not demonstrate that he was discriminated against as he alleged.
ISSUE PRESENTED
The issue presented whether the Agency required Complainant to work beyond his medical restrictions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Bustleton Station facility in Philadelphia, Pennsylvania. Complainant testified that on February 27, 2015, he was asked to perform two extra hours of street delivery, which he believed was outside of his medical restrictions. Management, however, claimed that the assignment resulted from Complainant's doctor's orders. According to Complainant, management told him he was needed for street delivery and his old modified assignment no longer existed after February 27, 2015. Complainant disputed this, explaining that he told management that it took his collection duties from him and gave them to a younger employee without similar restrictions. Complainant indicated that at the time he was asked to perform the duties, he had not received a copy of his doctor's documentation so he could not specifically dispute what management claimed as his restrictions.
Specifically, Complainant was offered a Modified (Limited Duty) City Carrier position with the following duties: Delivery of mail, 3.0 hours; Collection of mail, 3.0 hours; and Express Mail delivery, 2.0 hours. The physical requirements of the position were: Walking, driving, fine manipulation, bending for 3.0 hours; Driving, bending for 3.0 hours; and Driving for 2.0 hours.
On February 27, 2015, Complainant refused the modified assignment. He indicated that after he refused to perform the work, he was sent home. Complainant was advised by letter dated March 2, 2015, from the Department of Labor (DOL) that he had been offered a position as City Carrier by the Postal Service on February 27, 2015, and DOL had been advised that he refused or failed to report to the position. The letter informed Complainant that DOL reviewed the job offer and found it suitable in accordance with medical restrictions provided by his doctor on February 10, 2015, in which the doctor found that he could return to work eight hours per day with restrictions. The letter advised Complainant that he could submit medical documentation from a qualified physician, but if at the end of 30 days he failed to report to the position and his reasons for not reporting were not justified, his rights to compensation would be terminated.
Complainant indicated that he filed a grievance on the matter raised in the instant complaint through the National Association of Letter Carriers (NALC), and it was resolved in his favor through the payment of back pay and his return to his previous modified work.
On June 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (shoulder), age (57), and reprisal for prior protected EEO activity when:
1. On February 27, 2015, management attempted to force him to work outside his
medical restrictions and when he refused, he was sent home until on or around
April 30, 2015.2
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. In accordance with Complainant's request, 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. Specifically, the Agency indicated that assuming arguendo that Complainant established a prima facie case of discrimination as to all of his bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that based on the evidence of record, there was no basis on which to conclude that management attempted to force Complainant to perform duties that were outside of his medical restrictions. The job offer was reviewed by an Agency Health Resources Management Specialist (HRM) and an independent reviewer outside the Agency who concluded the job offer was appropriate for the restrictions in place. Management acknowledged that Complainant was sent home, but explained it was only after he refused to perform the work that was offered.
Management maintained unequivocally that Complainant's sex, age, prior EEO activity, or disability status were not factors in the decision to offer him the position or send him home. All decisions were based on the medical documentation and guidance management received from HRM. The Agency also noted that Complainant subsequently won a grievance that he filed on the matter and was compensated for all time lost. The Agency maintained that Complainant did not demonstrate that its nondiscriminatory reasons were a pretext for discrimination.
CONTENTIONS ON APPEAL
Neither party submitted a brief on appeal.
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").
Based on a thorough review of the record, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination with regard to all bases, we find the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was offered a position that was within his restrictions and which had been approved by the DOL and the Agency HRM Specialist. The record shows that Complainant was sent home because he refused to work. He was allowed to return when he provided additional medical documentation that more accurately listed what his restrictions were. We find that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination as he alleged.
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
__6/21/18________________
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 Complainant initially filed four additional claims. The claims were dismissed by the Agency on procedural grounds. Complainant does not dispute the dismissal on appeal, so they will not be addressed in this complaint.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120160711
5
0120160711