James S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

0120181551 (E.E.O.C. Sep. 25, 2019)

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

James S.,1
Complainant,

v.

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

Appeal No. 0120181551

Agency No. 4B-060-0118-17

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 14, 2018, finding no discrimination
concerning his 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
following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier, 01/B,
at the Agency’s Hartford-Washington Street Station in Hartford, Connecticut.

On September 29, 2017, Complainant filed his complaint alleging discrimination based on race
(African-American), color (black), disability (Rheumatoid Arthritis), and in reprisal for prior
EEO activity when he was subjected to harassment in that:

(1) On April 20, 2017, a coworker threatened him, and management did not take appropriate
action after he reported the incident to them;

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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(2) On May 19, 2017, he was given a pre-disciplinary interview and put on administrative
leave, and subsequently, on July 5, 2017, he was issued a notice of 14-day suspension
dated June 26, 2017;

(3) On or about June 22, 2017, he was forced to take training courses;

(4) On August 10, 2017, he was required to provide updated medical documentation;

(5) On August 12, 2017, and continuing, he was denied reasonable accommodation when he
was only provided with 1.5 hours of work per day; and

(6) On September 6, 2017, his manager slapped his hand, yelled at him, and threatened to
send him home.

After completion of the investigation of the complaint, Complainant did not request a hearing
before an EEOC Administrative Judge. The Agency issued its final Agency decision concluding
that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to
rebut. On appeal, Complainant submitted no brief.

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").

To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a
statutorily protected class: (2) she or he was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her or his statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
conditions of [complainant’s] employment and create an abusive working environment.” Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
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The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable
accommodation, Complainant must show that: (1) he or she is an individual with a disability, as
defined by 29 C.F.R. § 1630.2(g); (2) he or she 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. See
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). 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).

Complainant submitted no affidavit as requested by the investigator during the investigation.

Regarding claims (1), (2), and (3), Complainant alleged that on April 20, 2017, while a group of
employees were discussing an upcoming union election in the parking lot outside of the Post
Office, he interjected into the conversation. His coworker (E1) then told him, “Shut up Copy
Boy, why don’t you shut up and go make some copies or something.” Complainant told E1 he
was an “immature bitch” to which E1 responded he “would drag Complainant’s black ass outside
and beat it.” Next day, Complainant reported the incident to his Customer Service Manager
(M1) and a Customer Service Operations manager.

M1 immediately proceeded to have the incident investigated by an Agency Inspector. The
Inspector interviewed Complainant, E1, and a number of employees who witnessed the incident.
On May 19, 2017, Complainant was issued a pre-disciplinary interview due to his April 20th
conduct and was placed on administrative leave pending the outcome of an investigation into his
conduct. M1 stated that Complainant returned to work from his administrative leave as a result
of his grievance in early June 2017. Although Complainant alleged he was issued a 14-day
suspension, the record indicates that he was issued a 7-day suspension dated June 26, 2017, for
the April 20th incident. The record indicates that E1 was issued a pre-disciplinary interview on
May 17, 2017, and a 14-day suspension for his unacceptable conduct for the April 20th incident.

Management indicated that both Complainant and E1 were required to take the workplace
behavior training courses for the April 20th incident.

Regarding claim (4), Complainant indicated that he had been on light duty since December 2015,
because of his Rheumatoid Arthritis and all of a sudden on August 10, 2017, he was required to
bring in updated medical documentation. M1 indicated that Complainant provided his last
updated medication documentation before M1 began working in the Harford-Washington Street
station in March 2017. M1 stated that on August 10, 2017, all employees on the light duty list,
including Complainant, were required to provide updated medical documentation to ensure they
were working within their limitations.

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Regarding claim (5), Complainant indicated that on August 12, 2017, after he brought in his
updated medical documentation, his hours had been cut to 1.5 hours per day. M1 stated that
Complainant’s hours were cut to 1.5 hours per day due to his physical limitations indicated in his
documentation.

As a Letter Carrier, Complainant’s main duties involved delivering and collecting mail on foot or
by vehicle and carrying mail weighing up to 35 pounds and loading or unloading containers or
mail weighing up to 70 pounds. He had been on light duty since December 2015.
Complainant’s light duty forms dated February 3, 2016, August 17, 2017, and September 1,
2017, indicate that due to his progressive joint disease, he was limited in: lifting up to 10 pounds;
reaching above shoulders, walking, and standing up to 1.5 hours; and repetitive stooping/lifting
and climbing stairs up to 0.5 hours.

Management indicated that after receipt of his recent medical documentation, Complainant was
referred to the District Reasonable Accommodation Committee (DRAC) on September 13, 2017.
We find that the record shows that his work schedule was reduced to 1.5 hours temporarily to
abide by Complainant’s medical restrictions and that once newer documentation was submitted
and the DRAC meeting was held, he was given full time work within his restrictions.

Regarding claim (6), M1 indicated that on September 6, 2017, Complainant tried to call 911 for a
carrier who was not feeling well after leaving his office. M1 stated that M1 asked that carrier if
he was okay and he said yes and walked outside with a supervisor and M1. M1 denied yelling at
Complainant or slapping his hand but did tell him to mind his own business because M1, as the
Station Manager, was handling the situation and threatened to send him home if he did not
follow instructions to return to his case.

After a review of the record, we find that Complainant failed to show that he was denied a
reasonable accommodation or that any Agency actions were motivated by discrimination.
Complainant has not claimed that he was required to perform duties beyond his medical
restrictions. Furthermore, we find that Complainant was reasonably accommodated upon
submission of medical documentation. Complainant has not submitted an affidavit to refute
Agency assertions. Regarding the discrete incidents, we find that Complainant failed to show
that any of the actions were motivated by discrimination. Regarding his claim of harassment,
considering all the events, we find that Complainant failed to show that the actions were related
to any protected basis.

CONCLUSION

Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

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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

September 25, 2019
Date