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

Equal Employment Opportunity Commission

Mar 13, 2018

0120160299 (E.E.O.C. Mar. 13, 2018)

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

Jesse R.,1
Complainant,

v.

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

Appeal No. 0120160299

Hearing No. 510-2014-00068X

Agency No. 1G-321-0031-12

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the September 28, 2015 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 an Electronic
Technician, PS-10, at the Agency’s Processing and Distribution Center in Jacksonville, Florida.
Complainant experiences complications from several conditions including anxiety, stress,
depression, bilateral carpal tunnel syndrome, and Post-Traumatic Stress Disorder (PTSD). On
April 25, 2011, Complainant was involved in an incident with a supervisor (S1) in which S1
placed his hand on Complainant’s shoulder and stated words to the effect that Complainant was

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.
0120160299

2
“addicted to overtime like a crack addict is addicted to crack.” Complainant claimed that this
embarrassed him in front of his co-workers and he filed a claim with the Office of Workers’
Compensation Programs (OWCP) claiming that he experienced an Acute Stress Reaction in
association with PTSD. On June 28, 2011, OWCP accepted Complainant’s workers’
compensation claim.

On June 9, 2011, Complainant wrote a letter to the Lead Plant Manager (PM) requesting a “light
duty assignment outside the GMC building.” PM requested that Complainant submit medical
documentation in support of his request for light duty. From July 15, 2011 through August 2011,
Complainant submitted a CA-17 Duty Status Reports indicating that he was “totally disabled”
through October 1, 2011. However, on September 6, 2011, Complainant’s doctor indicated to
OWCP that Complainant was able to return to work; however, not at his former work location
and not under S1’s supervision.

On September 21, 2011, Complainant’s manager (M1) spoke with Complainant about his
updated restrictions. Based on their conversation, M1 issued Complainant an Offer of Modified
Assignment (Limited Duty). The offered assignment would include the same Electronic
Technician duties Complainant previously performed, but Complainant would be working at a
different facility away from S1. On September 23, 2011, Complainant submitted a CA-17
stating that he was totally disabled through November 30, 2011. Complainant’s doctor noted,
however, that he was “adjusting [Complainant’s] medications.” On September 24, 2011,
Complainant accepted and signed the modified assignment and noted that he would report as
soon as his doctor released him back to work.

On October 28, 2011, OWCP accepted a second on-the-job injury claim from Complainant.
Complainant had filed a claim regarding a right medial meniscus tear and aggravation of arthritis
in his right knee. From November 2011 through March 2012, Complainant submitted CA-17s
stating that he was totally disabled through May 30, 2012. On May 14, 2012, Complainant filed
for disability retirement. On June 26, 2012, Complainant submitted a CA-17 stating that he was
“totally disabled for work under his former management through August 15, 2012.”

On February 15, 2012, the Agency announced a voluntary, 90-day detail assignment in Norman,
Oklahoma for Electronic Technicians. The application period for the detail assignment ended in
April 2012. On July 9, 2012, Complainant’s doctor wrote a letter to OWCP stating that
Complainant was able to work an eight-hour day performing his usual job duties, but “at a
different location with different co-workers and supervisors.” Complainant’s disability
retirement became effective July 11, 2012.

On July 16, 2012, Complainant sent a letter to management stating that he had learned of the
Electronic Technician detail assignment available in Norman, Oklahoma. Complainant
requested that he be placed in the position and for the Agency to pay any losses or costs
associated with the sale of his residence and travel expenses.

0120160299

3
On July 24, 2012, Complainant submitted a CA-17 indicating that he was “totally disabled for
work under his former management through September 30, 2012.” On August 7, 2012, M1
again offered Complainant the Electronic Technician position at the Jacksonville National
Distribution Center (NDC) performing the same duties he previously performed, working the
same schedule, but at a different facility and with no contact with S1. Complainant signed and
accepted the job offer, but noted that his acceptance was “conditioned on compliance with all
medical [restrictions.]” Additionally, Complainant claimed that the job offer did not list all of
his restrictions. On August 28, 2012, the OWCP notified the Agency that Complainant had
undergone a referee evaluation and that he was capable of returning to work for eight hours a day
in a different location with a new supervisor and new co-workers.

On or around August 29, 2012, Complainant sent a letter to M1. In the letter, Complainant
inquired as to why he was not considered for the detail assignments announced in February 2012.
Further, Complainant acknowledged that the detail assignment was one pay grade higher than his
current position, but claimed that he was “higher on the register than [the three selectees.]”
Complainant expressed his willingness to consider any job offer within his restrictions; however,
Complainant requested that M1 answer numerous questions about the Jacksonville NDC,
including who the maintenance manager was there and whether he or she knew S1.

OWCP subsequently contacted the Agency to inquire as to whether Complainant had accepted
and reported to work under the modified job assignment. On October 11, 2012, M1 indicated to
OWCP that Complainant had conditionally accepted the modified job assignment, but had not
reported to work. By January 2013, Agency management was continuing to attempt to reinstate
Complainant under the modified job assignment offered.

On October 24, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of disability, age (52), and in reprisal for prior protected
EEO activity under when he was not afforded reasonable accommodation which resulted in his
retirement effective July 11, 2012.

The Agency processed the matter as a mixed-case complaint. On February 28, 2013, the Agency
provided Complainant with a copy of the report of investigation (ROI) and notice of his right to
file an appeal with the Merit Systems Protection Board (MSPB) or to wait for the Agency to
issue a FAD. Complainant initially filed an appeal with the MSPB. In addition, on March 15,
2013, Complainant filed a request for a hearing before an EEOC Administrative Judge (AJ).

On April 16, 2013, the MSPB issued an Initial Decision dismissing Complainant’s appeal for
lack of jurisdiction. Complainant subsequently filed a Petition for Review of the Initial
Decision. On April 17, 2013, the Agency issued a “Final Agency Decision – Mixed Case.” On
April 19, 2013, the Agency rescinded that decision. On May 29, 2013, the EEOC AJ assigned to
the matter dismissed Complainant’s hearing request without prejudice as the matter was still
pending before the MSPB based on Complainant’s pending Petition for Review. On September
30, 2013, the MSPB denied Complainant’s petition.

0120160299

4
On October 4, 2013, the Agency provided Complainant with a copy of the ROI and notice of his
right to request a hearing before an EEOC AJ. Complainant again timely requested a hearing;
however, the AJ assigned to the matter dismissed the request after Complainant failed to comply
with her orders. The AJ remanded the complaint to the Agency for a FAD, and the Agency
issued the FAD at issue on September 28, 2015.

In the FAD, the Agency initially determined that Complainant is an individual with a disability.
The Agency found, however, that Complainant failed to show that he was denied reasonable
accommodation. The Agency determined that record evidence showed that Complainant had
PTSD, which would continue for an indeterminable amount of time, resulting from S1 putting
his hand on him and embarrassing him in front of other employees on April 25, 2011, which
brought back feelings from traumatic incidents he suffered as a child. Subsequent Duty Status
Reports for Complainant dated August 19, 2011 and November 22, 2011, indicated that this
condition totally disabled him through December 31, 2011; however, documentary evidence
from OWCP, dated September 6, 2011, referred to Complainant’s doctor’s statement that he was
able to work, but not at his former location or under S1’s supervision.

Based on Complainant’s September 21, 2011 restrictions as indicated in his CA-17 Duty Status
Reports, M1 offered Complainant a modified job assignment on Tour 1 performing the standard
duties of an Electronic Technician at the Jacksonville NDC, eight miles away. This assignment
would ensure that Complainant had no contact with S1, and would call for him to be on his feet
or walk no more than four hours. Complainant accepted the offer and stated he would report to
the NDC as soon as his physician released him back to work. Complainant’s doctor continued to
keep him out of work through December 31, 2011. On June 26, 2012 and July 24, 2012,
Complainant’s doctor indicated on CA-17s that Complainant was “totally disabled from work
under his former management.” Complainant did not report for his offered modified job
assignment at the NDC. Thus, the Agency concluded that Complainant was offered a reasonable
accommodation at a different location doing the exact same job under different management, but
he chose not to accept it.

With respect to Complainant’s claim that the Agency denied his requests for detail assignments
in Oklahoma as a reasonable accommodation, the Agency noted that a detail assignment would
have only been a temporary reasonable accommodation. Further, the identified detail
assignments were not the same as Complainant’s Electronic Technician position and were at a
higher pay grade. The Agency found that an employer is not required to transfer an employee to
a higher paying position in order to accommodate him. The Agency determined that rather than
taking the limited duty assignment at the Jacksonville NDC, on May 14, 2012, Complainant filed
an application for disability retirement. Complainant was separated from his employment in
accordance with his disability retirement request on July 11, 2012. The Agency noted that
Complainant separated voluntarily, knowing that his physician had told OWCP that
“[Complainant] is competent to perform his usual job at a different location with different
coworkers and supervisors,” and that management had a job for him that fit those conditions. As
a result, the Agency concluded that Complainant had not been denied reasonable
accommodation.
0120160299

5

As to his disparate treatment claim, the Agency determined that management had articulated
legitimate, nondiscriminatory reasons for its actions. In particular, M1 confirmed that she
offered Complainant a duplicate position at the Jacksonville NDC with the same off-days and
schedule as he had before, but Complainant instead chose to file for disability retirement. In
addition, regarding the Oklahoma detail assignments, M1 stated that those positions were posted
in February 2012 and ended around April 2012, while Complainant was under physician’s care
and unable to work. As a result, management would not have contacted him at home and asked
if he wanted to go on detail to Norman, Oklahoma because of his medical restrictions.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination or reprisal as alleged. Finally, the Agency found that Complainant’s
constructive discharge must fail because his disability retirement was voluntary and he failed to
show that management’s actions were motivated by discriminatory or retaliatory animus. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the FAD contains lies and false statements masquerading
as facts. Complainant claims that the offered modified job was not actually an Electronic
Technician position and that M1 falsely stated that she mailed him the offer. Complainant
alleges that he contacted M1 in March 2012, and inquired about the detail assignments in
Oklahoma. Complainant claims that he informed M1 that his only restriction was to not work
within the District for current management and that the Oklahoma detail assignment would allow
him to be employed again. Complainant contends that the evidence shows that S1 and M1
discriminated against him in denying him the detail assignment. Accordingly, Complainant
requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Denial of Reasonable Accommodation

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. The Commission will assume without deciding (for the
purposes of this decision) that Complainant is an individual with a disability.

Upon review, the Commission finds that the Agency did not deny Complainant a reasonable
accommodation. Here, the record shows that beginning in July 2011, Complainant submitted
0120160299

6
CA-17s stating that he was “totally disabled.” Agency’s Motion for a Decision Without a
Hearing, Attach. 1, at 42. In September 2011, Complainant’s doctor indicated that Complainant
could return to work, but at a different location and under different supervision. ROI, at 130.
Generally, the Commission has held that an employer does not have to provide an employee with
a new supervisor as a reasonable accommodation. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act, Notice No.
915.002, Question 33 (rev. Oct. 17, 2002) (employer not required to provide employee with new
supervisor as reasonable accommodation). Thus, the Commission finds that the Agency was not
required to reassign Complainant to a new supervisor as an accommodation.

Nonetheless, in September 2011, management offered Complainant a modified job assignment at
a different facility (the Jacksonville NDC) performing the same duties he previously performed
with the same schedule and with assurances that he would have no contact with S1. ROI, at 131.
S1 noted that the Jacksonville NDC was eight miles away from Complainant’s former location
and that he (S1) had no jurisdiction over that facility. Id. at 93. Complainant accepted the offer
and stated that he would report for duty when his doctor cleared him to return to work. Id. at
133. From September 23, 2011 through March 2012, Complainant submitted CA-17s indicating
that he was unable to return to work. ROI, at 132-36. On May 14, 2012, Complainant filed for
disability retirement. Id. at 137.

Complainant contends that the Agency should have accommodated him by placing him in a
detail assignment to Norman, Oklahoma. M1 affirmed that the Norman detail assignments were
announced in February 2012, and closed in April 2012. ROI, at 108. M1 stated that the time
those detail assignments were available, Complainant’s medical documentation indicated that he
was unable to work. Id. In addition, M1 confirmed that Complainant did not contact
management to request consideration for the detail assignments until after those detail
assignments had ended and after his retirement. Id. Thus, Complainant was unable to perform
the duties of the detail assignments when the detail assignments were available and the positions
were not available once he requested to be placed in one.

The record indicates that even after Complainant had retired from the Agency, management
continued to offer him the Jacksonville NDC position and express willingness to reinstate him.
ROI, at 142-44. Complainant signed the job offer indicating that he would accept it, but never
reported for duty. Id. at 143, 155. While Complainant may not have been offered the exact
reasonable accommodation of his preference, an employer is not required to provide the precise
accommodation the employee or applicant wants, so long as the accommodation offered is an
effective one under the circumstances of the situation. U.S. Airways v. Barnett, 535 U.S. 391,
400 (2002). Complainant has presented no evidence that the offered accommodation at the
Jacksonville NDC was ineffective. Accordingly, the Commissions finds that Complainant was
not unlawfully denied a reasonable accommodation.

0120160299

7
Disparate Treatment

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). 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). 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. 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 and reprisal, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, as discussed above, M1 stated that
she offered Complainant a duplicate position at the Jacksonville NDC with the same schedule
and duties away from S1. ROI, at 105. M1 affirmed that the Norman detail assignments that
Complainant sought were unavailable and completed when he requested placement into one and
Complainant’s medical documentation indicated that he could not work when they were
available. Id. at 108. S1 stressed that Complainant was offered his exact position and schedule
at the Jacksonville NDC where S1 had no jurisdiction, but he chose disability retirement. Id. at
94.

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. 9,
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.

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 evidence that Complainant’s
protected classes were a factor in any of the Agency's actions. Complainant’s subjective belief
that the management actions at issue were the result of discrimination or reprisal is insufficient to
prove pretext. 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. As a result, the Commission finds that Complainant was not subjected to
discrimination or reprisal as alleged.

Constructive Discharge/Involuntary Retirement

0120160299

8
Finally, as to Complainant’s involuntary retirement claim, the Commission notes that the central
question in such cases is whether the employer, through its unlawful discriminatory behavior,
made the employee’s working conditions so difficult that any reasonable person in the
employee’s position would feel compelled to resign or retire. Therefore, in order to establish
that he was involuntarily retired, Complainant must first show that the Agency’s actions were
discriminatory or retaliatory. However, as noted above, Complainant has not proffered any
evidence that the Agency’s actions were motivated by discriminatory or retaliatory animus or
that their actions created intolerable working conditions. Therefore, because the evidence does
not establish that the Agency’s actions were based on discrimination or reprisal, Complainant's
involuntary retirement allegation fails.

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.

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.
0120160299

9
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.

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

March 13, 2018
Date