0120140330
08-17-2016
Herb L.,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
Herb L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120140330
Hearing No. 460-2011-00148X
Agency No. 1G-771-0002-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 23, 2013, 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 reasons stated below, the Commission AFFIRMS the Agency's final agency decision (FAD) which found that Complainant was not subjected to discrimination, reprisal or denied a reasonable accommodation.
ISSUES PRESENTED
The issue presented in this case is whether Complainant was subjected to harassment and discrimination when he was denied a disability accommodation and suspended.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodian, PS-04 at the Agency's Barbara Jordan Station in Houston, Texas. On January 13, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability (right hip impairment), and reprisal for prior protected EEO activity when:2
1. Beginning September 1, 2010, and ongoing, management did not fairly distributed work to him;
2. On several dates, since September 29, 2010, he was subjected to scrutiny, paged, and told to do his job;
3. Beginning in September, his request to meet the maintenance manager and/or plant manager was denied;
4. On October 1, 2010, he was issued a Seven-Day Suspension;
5. On October 11, 2010, his request to work overtime was denied;
6. On October 31, November 3, and November 10, 2010, his requests for leave were denied;
7. On November 11, 2010, he was issued a Letter of Warning;
8. On or around, April 6, 2011, he was not allowed to return to work based on his medical restrictions;
9. On May 4, 2011, he was subjected to an investigative interview;
10. Management would not sign his request for leave for the period May 4, 2011 to indefinitely (sic); and
11. He was issued the 14-Day Suspension, dated April 7, 2011.
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). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded that Complainant failed to prove that it subjected him to discrimination and/or reprisal as alleged.
Assuming Complainant was a qualified individual with a disability; the Agency found that with regard to claim no.1, the request for a rotation of assignments, Complainant did not establish that his medical condition required this accommodation. The Agency maintained that the medical documentation did not show that Complainant needed modified duties or a rotation of duties. A medical report dated August 19, 2011, indicated that the Complainant could perform his regular job duties so long as "he was allowed to rest his hip by sitting for 10 minutes if pain or swelling occurred after standing or walking for greater than 3 hours." The Agency noted that management presented no evidence that it was unable to reasonably accommodate this restriction. The Agency found that given that Complainant already had a lunch break and a second break during his tour it seemed likely that his restriction could be reasonably accommodated. The only information needed for the accommodation was measurable restrictions and the anticipated duration of the restrictions. The Agency noted that nothing in the record indicated that Complainant lacked the requisite skill, experience, education, or other job related requirements of the position.
With regard to claim no. 8, management's refusal to allow Complainant to return to work from April 2011 to August 2011, the Agency maintained that management properly denied this request because prior to Complainant's attempt to return to work on or about March 26, 2011, his supervisor sent him a letter dated March 9, 2011, requesting: (1) additional medical documentation regarding Complainant's hip restrictions; and (2) a completed Request for Light Duty form. The supervisor specifically requested measurable restrictions and an opinion regarding the anticipated duration of the restrictions. The supervisor followed up this request with a second request in a letter dated March 24, 2011. Additionally, Complainant was instructed by another management official to go back to his doctor and obtain measurable restrictions (e.g., required duration and frequency of rest episodes). The Agency maintained that Complainant did not provide the medical documentation requested by management and that he failed to engage in the interactive process and was not entitled to a reasonable accommodation.
Further, the Agency noted that Complainant specifically rejected light duty as an accommodation; presumably because he was concerned that management might accommodate him by reassigning him to a different craft. Therefore, the Agency maintained that Complainant could not claim that management should have offered him light duty. Based on the analysis above, the Agency found that management did not subject Complainant to disability discrimination when it refused to allow him to return to work from April 2011 to August 2011.
With regard to Complainant's request for indefinite Leave Without Pay (claim no. 10), the Agency maintained that it was well settled that an employer is not required to grant an employee indefinite leave as an accommodation. Notwithstanding, the Agency indicated that Complainant did not establish that he needed indefinite leave when he requested it on May 4, 2011. The Agency asserted that had he simply followed management's instructions and submitted the light duty documentation requested by management, his employment situation could have been resolved without a need for further leave. It was also noted that Complainant had the option of taking sick leave or annual leave, but he chose not to do so because he wanted to save this leave for the future. Based on the above, the Agency maintained that Complainant did not establish that he was entitled to an accommodation under the Rehabilitation Act. Consequently, the Agency asserts that management did not subject Complainant to disability discrimination under a failure to accommodation theory.
With regard to Complainant's disparate treatment claims, i.e., claims 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 the Agency found that Complainant did not establish a prima facie case of discrimination. Notwithstanding, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant asserted in claim no 1, that he received a disproportionate amount of less desirable assignments involving the Truck Terminal, and the first floor custodian duties. He indicated that he wanted rotations on the first floor restrooms, the second floor restrooms, all of the second floor, and the black top/MPE Office. Management explained that Complainant was a Level 4 custodian, and level 4 custodians were used to operate the powered industrial equipment. They also did work that Level 3 custodians were not allowed to do and assignments were based on the level of work. Management maintained that work was assigned in a uniform manner, subject to differences between Level 3 and Level 4.
With regard to claim 2, management indicated that Complainant was often not where he was supposed to be so he had to be paged and told to do his job. Regarding claim 3, Complainant requests to meet with the plant manager was denied because management had already explained why assignments could not be changed. Nevertheless, a meeting was scheduled on November 15, 2010, which was the manager's first available date.
With regard to claim 4, management explained that Complainant was issued a 7-day suspension because of unauthorized absence from the work area. It was noted that Complainant exited the building on September 1 and 5, 2010, without permission. It was reported that on September 1, 2010, Complainant indicated that he had gone to get a bag of chips and then just "screwed off" for a while and then on September 5th, Complainant was instructed to return to work and he responded, "What if I don't?" Management maintained that Complainant did not have approval to exit the building.
With respect to claim 5, management denied that Complainant's request to work overtime was denied. Management noted that Complainant did not sign up for the overtime request list. Regarding claim 6, the Agency indicated that Complainant's request for leave on October 31, November 3, and November 10, 2010, were denied because the weeks Complainant requested were already full. Management indicated that the maximum number of employees who could be off work those weeks had already been reached. Management indicated that starting in August 2010; employees were instructed to start scheduling their excess leave. Complainant was called in first and he indicated that he thought that he wanted certain days but indicated that he would get back to them. Complainant, however, did not get back to management until October 28, 2010. During the interim other employees started filing in the available weeks. Complainant was offered days that were not "maxed out" but he refused.
Management explained that with respect to claim 7, Complainant was issued a Letter of Warning for failing to follow instructions. Management noted that Complainant repeatedly wrote personal concerns and complaints on the work assignment sheet, despite repeatedly being instructed to cease the conduct. The supervisor indicated that he took into account the severity of the infraction and found that Complainant had violated Section 665.11 (Loyalty) and Section 665.15 (Obedience to Orders) of the ELM. With regard to claim 8, the Agency indicated that Complainant was not allowed to return to work because when he reported to work, he gave management a slip stating that "Patient can return to work on April 1, 2011, to perform full duties, but must be able to rest hip due to pain." The supervisor indicated that he told Complainant to apply for light duty if he needed to rest his hip due to hip pain and explained that the medical slip was insufficient to allow Complainant to return to work. He noted that the phrase, "resting of the hip" was considered a restriction, so Complainant was not, in fact able to return to full duty. The supervisor maintained that he gave Complainant the Light Duty paperwork to be completed prior to his return to work, but Complainant never submitted a written request for light duty or job accommodation. The supervisor asserted that he relied upon the Houston District Light Duty Policy.
The supervisor explained that Laborers/Custodians must be able to stand continuously for the duration of their tours. He indicated that the day-to-day work activities for the job are described in the "Functional Requirement and Environmental Factors to be completed by the Supervisor" form. The supervisor asserted that "resting of hip" was a major contrast of the position's description. The supervisor asserted that Complainant was not physically able to perform his job if he needed to rest his hip. The supervisor asserted that as Complainant had a medical restriction, he needed to apply for light duty. The supervisor indicated that Complainant's medical statement was insufficient because "it did not specify the length of time, frequency, etc." As such, Complainant was given the following documents: (1) a "Houston District Light Duty Request Document," (2) a "Functional Requirements and Environmental Factors to be Completed by the Supervisor," and (3) a "Functional Requirements and Environmental Factors to be Completed by the Physician."
Complainant was instructed to complete the documents before returning to work. The supervisor explained that Complainant did not return to work because there were no changes in his paperwork. The supervisor testified that management's decision-making process was based on the Houston Light Duty Policy, which specified that light duty must be requested in writing. The Manager also maintained that he informed Complainant that he would not be allowed to return to work unless either: (1) he was able to work full duty; or (2) he made a formal request for light duty which was approved. The Manager reiterated that the "rest hip" language in the medical slip was a medical restriction, and the documentation contained no specifics about the restriction (e.g., required duration or frequency of hip rest episodes). The Manager also noted that the position description showed that Laborer Custodians had to be able to stand, stoop, bend and stretch for long periods of time. The Manager indicated that he relied upon Article 13 of the National Agreement, and EL-912 and the Joint Contract Interpretation Manual. Regarding, claim 9, Complainant was instructed to call in to the Agency's Interactive Voice Response System to request leave. When he did not, he was called in for an investigative meeting to discuss the absences prior to be charged AWOL or some other corrective action.
With respect to claim 10, management not signing Complainant's request for leave for the period of May 4, 2011 to indefinitely, management explained that Complainant's request was denied because it was for an indefinite period it did not have an end time. Finally, with respect to claim 11, management explained that Complainant was issued a 14-day suspension dated April 7, 2011 because management noticed that Complainant's route was incomplete but they could not locate Complainant. He was eventually found in the welding shop where the lights were off and Complainant's head was resting on a table, giving the appearance that he was sleeping. Management maintained that Complainant was observed away from his work area without approval on several occasions throughout the night.
With respect to Complainant's harassment claim management maintained that the incidents cited were work related incidents that were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the only claims that he is raising on appeal are his claims of disability discrimination (failure to accommodate), retaliation (prior EEO activity) and harassment/hostile work environment. Complainant maintains that he was regularly harassed by his supervisor and management about his taking breaks or about his whereabouts. He explains that as a result of a hip injury, he experiences severe hip pain on occasion. Complainant walks with a slight limp and maintains that the Manager of Maintenance Operations Support (MMO) was aware that he had a medical impairment that required him to periodically rest. Complainant maintains that the MMO was aware that he had requested accommodation for his medical condition. Complainant argues that management refused to rotate assignments that lead to his experiencing pain in his hip.
In response, the Agency reiterates the arguments set forth in the FAD and requests that the FAD be affirmed.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of disability discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant did not follow directions, was missing from his posts, was found sleeping, did not request leave early enough when there were open slots, did not request leave as instructed, and did not return medical documentation with specific information regarding his impairment. We find that Complainant has not demonstrated that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination and/or reprisal.
Reasonable Accommodation
In order to establish that the Agency denied Complainant 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 a reasonable accommodation. A qualified individual with a disability is one "who, with or without reasonable accommodation, can perform the essential functions of the position in question ... and who ... [m]eets the experience and/or educational requirements for the position." 29 C.F.R. �1614.203(a)(6). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals with a disability. See 29 C.F.R. � 1630. 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. See 29 C.F.R. �� 1630.2(o) and (p).
With respect to Complainant's request for reasonable accommodation, we find that even if we assume, arguendo, that he is a qualified individual with a disability within the regulatory definition, he did not establish that he was denied a reasonable accommodation. The record shows that Complainant's physician released him full duty without restrictions but the physician noted that Complainant had to be allowed to rest his hip. Nevertheless, when asked to provide documentation regarding the parameters of what he need for a reasonable accommodation, Complainant refused to provide the requested medical documentation. Accordingly, we find that Complainant did not demonstrate that he was entitled to a reasonable accommodation as he did not provide the requested information. For these reasons, we also find that he was not denied a reasonable accommodation when he was not allowed to work from April 2011 to August 2011, or when he was denied indefinite leave.
Finally, with respect to Complainant's contention that he was subjected to a hostile work environment, we find that the incidents complained of by Complainant were general work related matters and were standard conversations had by employees and management. Accordingly, we find that the incidents were not severe or pervasive enough to establish a hostile work environment. We find that Complainant has not demonstrated that he was subjected to discrimination, reprisal or denied a reasonable accommodation.
CONCLUSION
The Agency's FAD which found that Complainant was not subjected to discrimination, and/or reprisal, or was denied a reasonable accommodation is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
__8/17/16________________
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 Initially Complainant also alleged that he was subjected to discrimination on the bases of color, religion, national origin, sex, and genetic information but he subsequently withdrew these bases.
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