Ira P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

May 4, 2016

0120140185 (E.E.O.C. May. 4, 2016)

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

Ira P.,1
Complainant,

v.

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

Appeal No. 0120140185

Agency No. 4E-800-0022-13

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated September 18,
2013, finding no discrimination with regard to his 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, we AFFIRM the
Agency’s final decision finding no discrimination.

BACKGROUND

In his complaint, dated February 12, 2013, Complainant alleged discrimination based on
disability (left knee and ankle) when on November 14, 2012, he was not reappointed to another
term as a Transitional Employee (TE) Letter Carrier. After completion of the investigation of
the complaint, Complainant did not request a hearing. The Agency thus issued its final
Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action,
which Complainant failed to rebut. Complainant filed the instant appeal and filed no appeal
brief.

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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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 (EEO MD-110), 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").

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incident. The record indicates that on November 20, 2011,
Complainant began his appointment as a TE Letter/City Carrier, PS-01, a non-career
appointment for one year, at the Agency’s Denver, South Denver Annex, Denver, Colorado.

Complainant indicated that on February 4, 2012, he injured his left knee and ankle at work,
and after the injury he was no longer able to perform his position duties and was provided a
modified/limited duty assignment of “half routes” with three hours of walking time. The
record indicates that as a City/Letter Carrier, Complainant was required to deliver and collect
mail on foot up to eight hours or by vehicle, maintain public relations, and carry mail weighing
up to 35 pounds. The record indicates that as of February 25, 2012, Complainant was limited
to lifting up to 20 pounds and walking up to four hours/day; as of March 6, 2012, he was
limited to lifting up to 15 pounds continuously, 30 pounds intermittently, and delivering mail
up to three hours/day; and as of March 16, 2012, he was limited to delivering mail up to four
hours/day. On July 24, 2012, Complainant had knee surgery and after the surgery, as of
August, 2012, and at the time of his termination, he was limited to lifting up to 10 pounds with
no kneeling or squatting.

On October 17, 2012, Complainant received the termination of his appointment at issue
effective November 13, 2012. Complainant noted that when he complained about his
termination on October 18, 2012, he was placed in a modified/limited duty assignment as a
clerk where he worked three hours per day until his termination on November 13, 2012.
Complainant’s supervisor indicated that Complainant’s position was a non-career appointment
for one year and his reappointment was based on his performance, attendance, and safety
during his appointment. The supervisor stated that she decided not to renew Complainant’s
appointment due to his poor performance. The supervisor indicated that Complainant’s
restrictions were accommodated but his performance never improved. The supervisor
indicated that when Complainant was monitored, he performed his job well but when he was
not monitored, he did not complete his duties. The record indicates that on June 1, 2012, the
supervisor issued Complainant a discipline letter for his failure to follow instructions when he
worked more hours than his medical restrictions on May 21, 2012.

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Assuming (without deciding) that Complainant was an individual with a disability, the
Commission finds that Complainant failed to show that he was denied a reasonable
accommodation or that any Agency actions were motivated by discrimination. Complainant
does not allege that he was required to perform his duties beyond his medical restrictions.
Complainant acknowledged that he was no longer able to perform his duties as a Letter/City
Carrier after his knee injury and he was accommodated for his conditions. We find that
Complainant failed to show that there were any similarly situated employees not in his
protected groups who were treated differently under similar circumstances or that the Agency’s
reason for not renewing his appointment was a pretext for discrimination. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination 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

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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 4, 2016
Date