Irvin M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 16, 20180120162060 (E.E.O.C. May. 16, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irvin M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120162060 Agency No. 4G-350-0171-15 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal from the May 13, 2016 final Agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency’s Post Office in Madison, Alabama. In July 2015, Complainant was involved in an off- duty car accident that resulted in his incapacitation. On August 26, 2015, Complainant requested forms to request reasonable accommodation. On August 27, 2015, the Postmaster informed Complainant that there was no light duty for Rural Carriers pursuant to the collective bargaining agreement, but Complainant’s request was referred to the District Reasonable Accommodation Committee (DRAC). On August 28, 2015, the DRAC requested additional information regarding Complainant’s condition and supplied Complainant with forms for his and his doctor’s completion. 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. 0120162060 2 Complainant returned to work on September 1, 2015; however, Complainant claimed that the Postmaster informed him that he had not submitted medical documentation clearing him to return to work. The next day, Complainant submitted medical documentation indicating that he could return to full duty with no restrictions. In addition, on September 4, 2015, Complainant submitted a DRAC Form 2-A he completed in which he stated that he had “neck/back injuries” and that “there may be accommodations need for heavy lifting and/or delivering parcels. If no accommodation cannot [sic] be made this will not affect my job performance.” Complainant further indicated that the only accommodation he was seeking was “assistance with heavy/bulky parcels” and, if not permitted, “this will not affect my job performance.” On September 15, 2015, the DRAC informed Complainant that it was closing his case since his submitted medical documentation indicated that he had no restrictions. Complainant had returned to full duty by the week of September 5, 2015. On December 12, 2015, the Decatur Post Office Postmaster was at the Madison Post Office to provide guidance regarding late-arriving mail, clerk shortages, and late carriers. Complainant claimed that the Decatur Postmaster approached him and asked what time he would return from his route. Complainant stated that he responded that he did not know. Complainant alleged that the Decatur Postmaster questioned him in a loud and argumentative manner and did not give a reason why he was being questioned. On October 7, 2015 (and amended on December 21, 2015), Complainant filed a formal complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment in reprisal for prior protected EEO activity when: 1. On August 19, 2015, Complainant’s request for a reasonable accommodation was denied; 2. On September 1, 2, and 3, 2015, Complainant was not allowed to return to work without medical clearance and he was told to leave the building; and 3. On December 12, 2015, management questioned Complainant about what time he would return, in a loud and argumentative manner. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of reprisal and found that management had articulated legitimate, non-retaliatory reasons for its actions. Specifically, with respect to claim (1), the Postmaster stated that Complainant was involved in a motor vehicle accident while off duty which resulted in him being out of work for over two months. The Postmaster confirmed that Complainant was referred to the DRAC, but 0120162060 3 was cleared to return to work before the process was completed. The Occupational Health Nurse Administrator (OHNA) affirmed that she advised the Postmaster that Rural Carriers were not afforded light duty according to the collective bargaining agreement. OHNA asserted that on August 28, 2015, she received correspondence from Complainant requesting information about reasonable accommodation. OHNA mailed an information packet with forms to Complainant, and received the completed forms on September 11, 2015. On the DRAC Form 2-A Complainant completed he stated his job performance would not be affected if he were not provided accommodation and his doctor stated on DRAC Form 2-B that there were “no restrictions needed.” On September 15, 2015, a letter was sent to Complainant informing him that since he had no restrictions or need for accommodation, his file was being closed because he was not a qualified individual with a disability. As to claim (2), the Postmaster stated that Complainant was not allowed to return to work and was told to leave the building because he had not been medically cleared to return to duty after being absent from duty for about two months, failed to provide medical documentation, displayed strange behavior, and would not follow instructions. Complainant subsequently provided medical documentation on September 2, 2015. Finally, with regard to claim (3), the Decatur Postmaster explained that on or around December 12, 2015, he went to the Madison Post Office to give guidance due to late-arriving mail, clerk shortages, and carriers in the office late. The Decatur Postmaster affirmed that he asked several carriers what time they thought they would return in order to determine if all available mail would make the last dispatch truck. The Decatur Postmaster could not recall who Complainant was, but stressed that he did not yell at anyone and spoke with everyone with dignity and respect. The Agency concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant claims that he received no informal counseling on how to proceed with his complaint. As a result, Complainant alleges that he did not know how to proceed with his complaint or how to maneuver through the EEO process. Complainant contends that the Agency has subjected him to numerous discriminatory acts and retaliation over the course of his career. Complainant claims that in this complaint, he was subjected to reprisal and a hostile work environment. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS As an initial matter, the Commission will address Complainant’s claims that he did not receive proper EEO counseling and guidance on the EEO process. The record indicates that Complainant completed an Information for Pre-Complaint Processing and made initial EEO 0120162060 4 counselor contact on September 9, 2015. The EEO Dispute Resolution Specialist’s Inquiry Report indicates that Complainant was advised of his rights, given a booklet detailing the EEO process, and provided information about his claims. On appeal, Complainant specifically quotes the booklet titled “What You Need to Know About EEO,” an overview of the EEO process in the Postal Service that the EEO Dispute Resolution Specialist indicated she provided to him. Complainant was subsequently issued a Notice of Right to File Individual Complaint further advising him of his rights and information related to the EEO process and, pursuant to that notice, Complainant timely filed a formal EEO complaint. Complainant has not identified any component of the EEO process of which he believes he was insufficiently advised. Thus, the Commission is unpersuaded that the Agency’s EEO counseling and guidance was insufficient or otherwise improper. Denial of Reasonable Accommodation Complainant alleged in claim (1) that the Agency denied him reasonable accommodation in violation of the Rehabilitation Act. The Commission notes that an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. To establish a denial of 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. Here, Complainant was incapacitated after being involved in a car accident on July 25, 2015. ROI, at 194, 197. Complainant was initially cleared to return to work on August 19, 2015, which was later updated to September 1, 2015. Id. at 195-96. On August 26, 2015, Complainant requested forms to request reasonable accommodation. Id. at 192. The Postmaster informed Complainant that Rural Carriers were not entitled to light duty under the collective bargaining agreement, but referred Complainant to the DRAC. Id. at 193. On August 28, 2015, the DRAC requested that Complainant submit medical documentation in support of his request for reasonable accommodation. Id. at 199. On September 2, 2015, Complainant submitted medical documentation indicating that he could return to work with no restrictions and without any accommodations. Id. at 197, 202. In particular, Complainant stated on DRAC Form 2-A that “the only accommodation that I am requesting (if allowed) is assistance with heavy/bulky parcels. If this accommodation is not permitted this will not affect my job performance.” Id. at 209. Based on Complainant’s submitted medical documentation stating that he had no restrictions or need for accommodation, the DRAC informed Complainant that it was closing his file. Id. at 207. Therefore, the record evidence establishes that Complainant failed to demonstrate that he needed reasonable accommodation to perform the essential duties of his position. Accordingly, the Commission finds that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment 0120162060 5 To prevail in a disparate treatment claim such as this, 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that: (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review of the record, and assuming arguendo that Complainant established a prima facie case of discrimination, the Commission finds that the Agency articulated legitimate, non- retaliatory reasons for its actions. As to claim (1), as discussed above, Complainant failed to demonstrate that he needed a reasonable accommodation to perform the essential duties of his position. With respect to claim (2), the Postmaster affirmed that he sent Complainant home on September 1, 2015, because he had not yet provided medical documentation clearing him to return to work. ROI, at 113. The Postmaster noted that Complainant displayed strange behavior after being instructed by his immediate supervisor to submit medical documentation clearing him to return to work. Id. at 111. The Postmaster stressed that he asked Complainant in a professional manner to exit the building after he gathered information from the break room’s bulletin board because he had not submitted medical documentation clearing him to return to work. Id. at 113. The record indicates that Complainant returned to work the week of September 5, 2015. Id. at 219. Finally, regarding claim (3), the Decatur Postmaster affirmed that he went to the Madison Post Office on or around December 12, 2015, to give guidance to the office about late-arriving mail; clerk shortages; and carriers in the office late. ROI, at 157. The Decatur Postmaster stated that he asked several carriers what time they believed they could return to determine if all available mail would make the last dispatch truck. Id. The Decatur affirmed that he could not recall who Complainant was, but denied yelling at anyone and stressed that he treated each employee with dignity and respect. Id. at 158. Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. 0120162060 6 As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant’s protected classes were a factor in any of the Agency’s actions. Aside from bare assertions, Complainant has not provided any evidence to rebut the Agency’s asserted legitimate non-retaliatory reasons for its actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. Finally, to the extent that Complainant alleges that he was subjected to a hostile work environment with respect to the matters herein, the Commission finds that a finding of a hostile work environment is precluded by the Commission’s determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, the Commission finds that Complainant has not established that he was subjected to reprisal or a hostile work environment as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 0120162060 7 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. 0120162060 8 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 16, 2018 Date Copy with citationCopy as parenthetical citation