Irvin M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

May 16, 2018

0120162060 (E.E.O.C. May. 16, 2018)

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.
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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
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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
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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

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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.
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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.

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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.

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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