0120142648
11-23-2016
Horace A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Horace A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120142648
Agency No. 4F-900-0031-14
DECISION
On July 14, 2014, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 17, 2014, 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. and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a full time Laborer Custodial at the Agency's Pacific Palisades Post Office in California.
On December 10, 2013, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against him based on his race (African-American) and disability (right shoulder, right hip) when:
1. from August 3, 2013, and ongoing, he was assigned a larger portion of the manual labor than co-worker 1 (White), a Laborer Custodial Postal Support Employee (meaning temporary);
2. on October 19, 2013, he was required to work beyond his medical restrictions; and
he was discriminated against based on reprisal for prior protected EEO activity when:
3. on or around December 24, 2013, he was denied a change of schedule to be non-scheduled on December 26, 2013.
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).2 The Agency found no discrimination.
Complainant wrote that his supervisors were the Postmaster of the Pacific Palisades Post Office and the Supervisor of Customer Service there (S1). Regarding issue 1, Complainant stated that because Co-worker 1 did not do the tasks expected of him and was assigned mail handling related tasks, management expected Complainant to do the entire custodial workload alone, and he performed the majority thereof. Complainant contended that Co-worker 1 received his assignments from the Postmaster, and the Postmaster and S1were responsible for the inequitable assignment of custodial work.
The Postmaster stated that while everyone at the Post Office reports to him, he was not Complainant's direct supervisor, who would have been any supervisor at the facility at the time, such as S1. He stated that he did not directly assign work to Co-worker 1, but as Postmaster he technically assigned work to everyone in the building.
The Postmaster wrote that prior to November 2013, he was on detail assignments and in November 2013, returned to the Pacific Palisades Post Office. He explained that his operation (which includes a main post office and retail unit) is allotted 12 hours of custodial work daily. He stated that starting in March 2011, Complainant was off work for two years on Office of Workers' Compensation Program (OWCP) leave and when he returned in February 2013 he had a medical restriction of working four hours daily. The Postmaster wrote that Co-worker 1 was hired around February 2013, so when Complainant returned with his four hour restriction, Co-worker 1 performed eight hours of custodial work daily, and Complainant performed four, and when Complainant resumed a full-time schedule in December 2013 or January 2014, Co-worker 1 was reassigned so his operation would not go over its 12 hour allotment of custodial work.
The Postmaster stated that Co-worker 1 did custodial work, and he did not assign him non-custodial work. He stated that he did not understand Complainant's allegation that he was given a larger share of janitorial duties since Complainant worked four hours daily, and Co-worker 1 eight.
S1 stated that she was not Complainant's supervisor, he did not report to her, and she supervises the carriers. She stated that she does not supervise custodial employees and hence does not know their duties except that they say they perform general janitorial duties. S1 stated that Co-worker 1 performed janitorial work and at times performed as an acting supervisor, and she did not assign work to Complainant and Co-worker 1 - the only thing she did was ask Complainant on several occasions to replace the toilet paper and ask Co-worker 1 to mop the floor.
Regarding issue 2, Complainant stated that on October 19, 2013, S1 violated his four hour work day medical restriction by having him work over four hours. On October 19, 2013, Complainant worked 4.60 hours. He contended that S1 and the Postmaster were aware of his medical restrictions because he gave a copy thereof to both of them when he returned from disability leave on February 19, 2013.
S1 denied that she was aware on October 19, 2013, that Complainant had medical restrictions. She explained that she started working at the Pacific Palisades Post Office around October 15, 2013, and first learned in November 2013 that Complainant had a medical condition when she was fixing clock ring errors and noticed Complainant was not working eight hours daily and was on OWCP. S1 stated that she believed that on October 19, 2013, she had to leave the post office and no one else was in the building, so she asked Complainant to answer the door, and she did not know then that he had a four hour work restriction and that by answering the door he would go over his four hour limit. S1 stated that after she made the request, Complainant did not say anything nor tell her his shift was over.
On issue 3, Complainant contended that on December 23, 2013, the Postmaster said to him "the holiday tomorrow is on your work day, will you be off?" and he responded "no, I'd like to take the 26th of December off" and the Postmaster said fine. Complainant stated that nevertheless, on December 24, 2013, S1 verbally informed him he could not take December 26, 2013, off, and when he went to the Postmaster later that day he said "Oh, she's not letting you take off."
The Postmaster countered that he thought he denied Complainant being off work on December 26, 2013. He explained that Complainant already took a lot of time off in November and December 2013, Complainant had no leave (actually he had a low leave balance) and he accommodated him several times when he asked to take off before December 26, 2013. The Postmaster added that the day after Christmas he had customers coming in and wanted the facility cleaned. S1 stated that Complainant told her that the Postmaster said he could take December 26, 2013, off as a non-scheduled day. S1 wrote that she told Complainant to give her an approved leave slip, and the Postmaster told her he disapproved Complainant's request to take a non-scheduled day on December 26, 2013. S1 wrote that she told Complainant what the Postmaster said. According to S1, she was simply following what the Postmaster decided, and noted he said everyone had to work their schedule for this holiday, and even she had to work.
In its FAD, the Agency found that Complainant was an individual with a disability due to restrictions on lifting/carrying, required breaks, pushing and pulling, fine manipulation on the right, reaching above the shoulder on the right, and the daily four hour work restriction. It went on to find that Complainant did not make out prima facie cases of disability, race, and reprisal discrimination. The Agency found that even if Complainant established such prima facie cases, Agency management articulated legitimate, nondiscriminatory reasons for what occurred, as recounted above, and Complainant failed to prove pretext.
ANALYSIS AND FINDINGS
The Agency concedes Complainant is an individual with a disability. To prevail on his disparate treatments, 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 on Complainant's disparate treatment claims may be dispensed with in this case, however, since 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); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Here, the Agency explained that (1) Complainant was not assigned a larger share of manual labor than Co-worker 1, (2) that when S1 asked Complainant on October 19, 2013, who was the only one in the building to answer to door when she went out, she was new to this post office and was not aware of Complainant's four hour daily work restriction and that he was at the end of his shift and Complainant did not advise S1 of this, and (3) the Postmaster denied Complainant's request to move his non-scheduled day to December 26, 2013, because he already took a lot of time off in November and December 2013, Complainant had no leave (actually he had a low leave balance) and he accommodated him several times when he asked to take off before December 26, 2013, and the day after Christmas the Post Office had customers coming in and the Postmaster wanted the facility cleaned, and S1 simply implemented the Postmaster's decision.
In an attempt to prove pretext, Complainant disputes the factual accuracy of much of the Agency's explanation. Also, we note that there are inconsistencies in the record on who was Complainant and Co-worker 1's supervisors and who assigned them their daily tasks. The burden of proof to prove discrimination is on Complainant, and we find he has not shown the Agency's explanations are unworthy of credence.
Issue 2 should also be analyzed as a denial of reasonable accommodation. For the same reasons set forth above, and that Complainant only worked a bit beyond his four hour work day restriction, we find that the Agency is not liable for a denial of reasonable accommodation.
The FAD 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
November 23, 2016
__________________
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 appeal, Complainant writes that he wants to have a hearing, as he also wrote in his complaint. But Complainant does not dispute the Agency's representation in its FAD that he did not request a hearing after receiving the report of investigation with and notice of right to request a hearing.
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