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

Equal Employment Opportunity Commission

Dec 12, 2018

0120172075 (E.E.O.C. Dec. 12, 2018)

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

Jamie K.,1
Complainant,

v.

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

Appeal No. 0120172075

Agency No. 1E982002516

DECISION

On May 30, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
April 27, 2017 final decision 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler
Equipment Operator at the Agency’s Seattle National Distribution Center (NDC) in Federal Way,
Washington.

On August 29, 2016 (and amended several times), Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the bases of race (African-American), disability, and
in reprisal for prior protected EEO activity when:

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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1. on or about May 13, 2016, the Agency placed Complainant on Emergency
Placement in Off Duty Status;

2. on July 12, 2016, the Agency subjected Complainant to an investigatory interview
and subsequently on July 21, 2016, the Agency issued Complainant a Letter of
Warning (LOW);

3. on August 10 and 18, 2016, the Agency did not accommodate Complainant and
sent him home from work; and

4. on or around September 29, 2016, Complainant was issued a temporary light duty
job offer instead of a permanent offer.

With respect to claims (1) and (2), Complainant’s supervisor, the Supervisor Distribution
Operations (SDO), explained that when assigned to “Tugger” duties, Complainant had “to clear
the loop of dispatch mail in order to ensure a timely and no missed dispatch.” On May 13, 2016,
SDO saw that Complainant failed to clear the loop. SDO then caught up to Complainant and
ordered him to clear the loop. When Complainant refused, SDO sent him home. SDO said that
all employees performing Tugging duties were required to clear the loop of dispatch. Complainant
argued that SDO lied about the events of May 13, 2016, and that Complainant had a witness.
Complainant did not, however, identify the witness. Complainant also claimed that SDO liked to
yell at and insult African Americans. Management officials held an investigatory interview with
Complainant and ultimately decided to issue him a LOW as a result.

Regarding claims (3) and (4), Complainant stated that he experiences complications from a
deficiency in his urinary system which prevents him from controlling urine output. As a result,
Complainant’s physician directed him to avoid machines that vibrate. On July 26, 2016,
Complainant asked to not be assigned to the Tugger anymore because it vibrates. Complainant
contended that he can perform all of the duties of his position except driving a Tugger.
Complainant was not assigned to drive a Tugger for about two weeks until August 10, 2016.
Complainant alleged that SDO sent him home because he could not drive the Tugger on both
August 10 and 18, 2016. Complainant contended there were other Equipment Operators in his
section who do not have to drive the Tugger.

SDO stated that he sent Complainant home on August 10, 2016, with instructions to complete
medical documentation. SDO averred that Complainant submitted documentation on August 12,
2016, supporting his medical condition. Management then forwarded the documentation to its
Medical Unit to determine whether it could accommodate Complainant. The Manager Distribution
Operations (MDO), Complainant’s second-line supervisor, attested that Complainant was sent
home on August 10 and 18, 2016 because he did not have medical certification. Both SDO and
MDO claimed that driving a Tugger was an essential duty of Complainant’s position and that all
Equipment Operators were rotated between Forklift and Tugging duties.

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The Plant Manager (PM) stated that he was aware Complainant requested light duty and,
eventually Complainant provided clarification of his medical restrictions. The Agency then
offered Complainant a light duty assignment in accordance with his restrictions, but Complainant
refused the assignment. At the time of PM’s affidavit, the reasonable accommodation process was
still ongoing. PM stated that Complainant was granted leave pending the outcome of the
reasonable accommodation process.

The record contains a form completed by Complainant on September 10, 2016, in which he
requested light duty due to his medical condition. The record further contains a letter dated
September 27, 2016, from management to Complainant in which Complainant was issued a
temporary light duty offer after evaluating his medical restrictions. The offer also stated that “in
order for [Complainant to remain in a light duty status . . . [Complainant] will be required to submit
an updated medical document.” Complainant signed the offer indicating his acceptance.

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). The decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged. Specifically, the Agency concluded
that Complainant failed to establish a prima facie case of discrimination, and even if he had, he
was unable to rebut management’s legitimate, nondiscriminatory reasons for its actions.

Complainant filed the instant appeal without submitting any arguments or contentions in support.

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, at Chapter 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”).

Disparate Treatment – claims (1) – (3)

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially 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. Corp. v. Waters, 438 U.S. 567, 576 (1978).
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Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. 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, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, the Agency articulated legitimate, nondiscriminatory reasons its actions in
claims (1), (2), and (3). The Agency averred that it sent Complainant home in claim (1) and issued
the LOW in claim (2) because he refused to follow an order to clear the loop of dispatch. The
Agency sent Complainant home in claim (3) because he did not have medical documentation
supporting his request not to drive a Tugger. The Agency’s response to Complainant’s medical
limitations is further analyzed below with respect to claim (4).

Because the Agency has articulated legitimate, nondiscriminatory reasons for its actions, we
proceed directly to the pretext analysis. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 713-14 (1983). Complainant may demonstrate pretext by showing by a preponderance of the
evidence that the Agency’s reasons were motivated by discrimination. Id.; Hernandez v. Dep’t of
Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health & Human
Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).

Complainant has set forth no argument that would demonstrate, by a preponderance of the
evidence, that the Agency’s articulated explanations are pretext for discriminatory or retaliatory
animus. Thus, the Commission finds that Complainant has not shown he was discriminated or
retaliated against as alleged in his first three claims.

Reasonable Accommodation – claim (4)

An agency is required to reasonably accommodate the known limitations of a qualified individual
with a disability, unless it can show that doing so would cause an undue hardship to its operations.
See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement
Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agric., EEOC
Appeal No. 0120120400 (Dec. 3, 2015). While Complainant is entitled to an effective reasonable
accommodation, he is not entitled to the accommodation of her choice. Lynette B. v. Dep’t of
Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). For purposes of this decision, we assume
that Complainant is an individual with a disability.

In this case, the Agency demonstrated that it considered Complainant’s medical restrictions and
provided Complainant with a temporary light duty offer that met his restrictions. Indeed,
Complainant accepted the Agency’s temporary offer. Complainant solely expresses
dissatisfaction that the offer was not permanent.
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We note that, although individuals protected under the Rehabilitation Act are entitled to reasonable
accommodation, they are not necessarily entitled to their accommodation of choice. See Castaneda
v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Complainant failed to proffer
sufficient evidence to show why the Agency’s actions were not effective. As a result, the
Commission finds that Complainant has not shown that he was denied reasonable accommodation
in violation of the Rehabilitation Act.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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).
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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

December 12, 2018
Date