Lenny W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jul 13, 2017

0120151648 (E.E.O.C. Jul. 13, 2017)

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

Lenny W.,1
Complainant,

v.

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

Appeal No. 0120151648

Agency No. 4C-440-0103-14

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February
28, 2015, 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., 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. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Full-Time City Carrier at the Westlake Post Office in Cleveland, Ohio.
On August 2, 2014, Complainant filed an EEO complaint in which he alleged that his second-
level supervisor, the Customer Services Manager (CSM) and his immediate supervisor, the
Customer Services Supervisor (CSS), discriminated against him on the bases of sex (male), color
(White), disability (Leukemia, residual effects of neck, shoulder, and right-foot injuries), age
(51), and in reprisal for prior protected EEO activity when:

1. Since March 2014, his disabilities were not accommodated;

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 unspecified dates, he was not properly paid for his unauthorized absences;

3. From December 2013 through June 2014, CSM demanded excessive documentation for
absences authorized pursuant to the Family Medical Leave Act (FMLA) and the Office of
Workers’ Compensation Programs (OWCP); and

4. From December 2013 through June 2014, CSM refused to allow him to attend doctor’s
appointments.

Complainant’s EEO Activity

Complainant averred that he had filed several EEO complaints against the CSM and other
managers, including the instant complaint. He also averred that he voiced opposition to what he
believed to be discriminatory practices on an almost daily basis, and that he had ongoing
conflicts with the CSM and other managers. Investigative Report (IR) 114, 251-74. The CSM
acknowledged that Complainant had filed five or six EEO complaints against her and her
management team since she had been at the Westlake Post Office. The CSS averred that
although Complainant never named him as a responsible management official, he had been
involved with at least one of Complainant’s previous complaints. IR 196-97, 219.

Incident (1) - Disability Accommodation

Complainant presented documentation establishing that he had been diagnosed with a number of
medical conditions, including chronic myelogenous leukemia (CML); injuries to the nerves in
the neck and shoulder area; sprained right ankle; plantar fasciitis of the right foot; and a hernia.
He was diagnosed with CML in 2005 and the prognosis at the time of the incidents at issue in the
complaint was “in remission.” In August 2010, he sustained an injury to his neck and shoulder
that resulted in long-term nerve damage, but was unsure of the prognosis. Between February and
March 2014, he had taken leave to undergo surgery for a hernia. In April 2014, he was
diagnosed with a sprained right ankle. Despite these conditions, he was medically cleared to
return to work in April 2014, based on an OWCP CA-17 report dated March 19, 2014. IR 115,
136-37, 153-54.

The duties of Complainant’s position as a Mail Carrier required him to case, sort, and deliver
mail and parcels along a prescribed delivery route. IR 115. According to the March 2014 CA-
17 report, Complainant was subject to twenty-pound lifting, pushing, and pulling restrictions that
precluded him from casing mail and carrying mail bundles and parcels without the aid of a cart
or utility dolly. IR 115, 159. The lifting restrictions ranged from 20 to 35 pounds between April
and October 2014. IR 160-75, 184, 332.

As an accommodation, Complainant requested that a utility dolly be permanently assigned to his
route for use with heavy parcels. IR 116-17. Effective March 25, 2014, the CSM offered
Complainant a modified limited duty assignment that consisted of making his mail deliveries
along his regular route without having to case mail. The offer referenced lifting, pushing, and
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pulling restrictions of less than 20 pounds. According to the CSM and the CSS, Complainant’s
start time was moved from 8:00 AM to 9:00 AM and that during that hour, his mail would be
cased for him. IR 158, 197-99. Complainant indicated on the reassignment offer form that he
was accepting the offer under “duress and protest.” IR 158, 221.

On October 20, 2014, the CSM offered Complainant a second limited duty assignment that was
identical to the first except that his lifting restriction was raised to 35 pounds. IR 329. She
averred, however, Complainant had been away from work since August 2014, and that as of
November 13, 2014, the date she submitted her affidavit, he had not returned. IR 198. She
maintained that Complaint did not request a reasonable accommodation, and that based on the
information provided by Complainant’s physician, the Agency provided a reasonable
accommodation for him. IR 198. She also averred that Complainant never requested a dolly, that
the facility had four dollies that Complainant could use if he had to, and that employees had the
option of purchasing their own dolly. IR 199. The CSS stated that management never refused to
find work for Complainant. IR 221.

Incident (2) – Improper Payments

Complainant averred that he was paid incorrectly, particularly that on several occasions, he
would be charged with sick leave rather than leave without pay. IR 104, 119. However, he was
unable to identify the dates upon which the alleged errors occurred. IR 118. Complainant was
diagnosed with plantar fasciitis of the right foot in June 2014. IR 115. The Department of Labor
denied his ensuing claim for workers’ compensation on the grounds that it did not result from a
work-related event. IR 328, 333. The CSM averred that as a result of the Department of Labor’s
decision to deny that claim, workers’ compensation payments that had been awarded to
Complainant while OWCP’s decision was pending had to be retroactively rescinded. The CSM
denied that the error was intentional. IR 202.

Incident (3) –Medical Documentation

Complainant averred that the CSM continuously tried to coerce him into divulging his private
medical information to her as a condition for her approval of his leave requests. IR 120-21. He
further averred that these incidents occurred on December 18 and 20, 2013, February 5 and 21,
2014, February 26 through March 19, 2014, April 16 and 23, 2014, and June 24, 2014. IR 121.
The CSM responded that Complainant would always try to schedule an appointment on the day
right after a holiday at times when extended absences would adversely impact delivery
operations. She also averred that Complainant would typically request three to four hours of
leave for a twenty-minute visit to his doctor’s office. IR 203-04. She denied that she demanded
excessive documentation from Complainant, pointing out that it was her job as a manager to
ensure that leave requests were substantiated, and that Complainant had been neither honest with
her nor cooperative. IR 204-05. The CSS likewise denied asking for excessive documentation
from Complainant. IR 226.

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Incident (4) – Medical Appointments and Examinations

Complainant averred that the CSM and the CSS always insisted that he failed to follow proper
procedures when requesting leave, despite that fact that he submitted his leave slips up to ten
days in advance. He identified fourteen dates between December 19, 2013 and June 24, 2014 as
dates on which the CSS or CSM refused to approve his leave for medical treatment. IR 123-24.
The CSM denied that she refused to approve any of Complainant’s leave requests for medical
appointments but noted again that Complainant had requested 3-4 hours of leave for what turned
out to be a twenty-minute office visit, and that his extended time off during work hours forced
management into having other carriers complete his route, which often resulted in overtime
being incurred. According to the CSM, several of Complainant’s appointments fell on his day
off or on days on which he was in continuation-of-pay status, and that on June 24, 2014, the
CSM had asked him to submit a new leave slip to reflect the fact that his workers’ compensation
claim had been denied. IR 207-08. Between December 2013 and May 2014, the record showed
that Complainant’s leave requests had been approved, and that physician’s notes had been
provided. IR 134-35, 139-42, 145, 155-56, 176-77, 180, 185, 214.

Post-Investigation

At the conclusion of the investigation, the Agency notified Complainant 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.

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”).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
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action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).

The prima facie inquiry may be dispensed with in this case however, since the Agency
articulated legitimate and nondiscriminatory reasons for all of the incidents described in the
complaint. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
As to incident (1), the CSM had provided Complainant with reasonable accommodations in
March and October of 2014. Regarding incident (2), the CSM made retroactive corrections to
Complainant’s pay in response to the decision by the Department of Labor to deny his OWCP
claim for the foot injury Complainant sustained in June 2014. Concerning incident (3), the CSM
and the CSS had done no more than ask Complainant to substantiate his leave requests with
appropriate medical documentation in light of the impact his absences were having on delivery
operations. With respect to incident (4), the CSM had approved Complainant’s leave requests
for medical treatment between December 2013 and June 2014, and on June 24, 2014, she had
asked Complainant to revise his leave slip after his OWCP claim was denied.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
explanations given by the CSM and the CSS are pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); Burdine, 450 U.S. at 256; Holley, supra; Pavelka v. Dept. of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated by showing such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's
proffered legitimate reasons for its action that a reasonable fact finder could rationally find them
unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov.
20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008).

When asked by the investigator why he believed that his sex, skin color and age were factors in
the incidents described above, Complainant conceded that his age was not a factor, but stated
that it was because he was a white male and the CSM was a black female. IR 119, 122, 124.
When asked the same question about his medical condition, he replied that he did think that his
medical condition was a factor with respect to incident (2), but expressed his belief that his
medical condition was a contributing factor in incidents (3) and (4). IR 119, 122, 125. Finally,
when asked about his previous EEO complaints, he replied that the CSM and the CSS were
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retaliating against him. IR 120, 122. Beyond these assertions, he does not submit any affidavits,
declarations, or unsworn statements from witnesses other than himself nor documents that
contradict the explanations provided by the CSM and the CSS or which call their veracity into
question. In particular, he offers no evidence to support his reprisal allegation other than the fact
that he named the CSS and the CSM in at least one of his previous complaints. We therefore
agree with the Agency that Complainant has not established the existence of an unlawful motive
on the part of the CSM or the CSS with respect to any of the four incidents in his complaint.

Although Complainant never formally raised a claim of discriminatory harassment, he did
characterize the acts by the CSM and the CSS he described in incidents (2), (3), and (4) as such
during the investigation. IR 119-20, 122, 124. To the extent that Complainant is attempting to
establish a discriminatory harassment claim, he would have to show that because of his sex,
color, age, disability, or previous EEO activity, he was subjected to conduct that was either so
severe or so pervasive that a “reasonable person” in his position would have found the conduct to
be hostile or abusive. Only if Complainant establishes both of those elements, motive and
hostility, will the question of Agency liability present itself. Since Complainant failed to
establish the existence of a discriminatory motive on the part of the CSM or the CSS, no further
inquiry is necessary as to whether those acts rise to the level of harassment. See Nicki D. v.
Dept. of Veterans Affairs, EEOC Appeal No. 0120133247 (Oct. 15, 2015).

The 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. Dept. of Agriculture, EEOC
Appeal No. 0120120400 (Dec. 3, 2015).

A qualified individual with a disability is an “individual with a disability who satisfies the
requisite skill, experience, education, and other job-related requirements of the employment
position such individual holds or desires, and who, with or without reasonable accommodation,
can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Here, there is no
question that Complainant is a qualified individual with a disability. He had been diagnosed
with several conditions that substantially limit his ability to lift, push, and pull objects weighing
more than 20 pounds in March 2014. This limitation rose to 45 pounds by October 2014. In
April 2014, he received medical clearance to work and was able to perform all of the essential
functions of the mail carrier position without accommodation, with the exception of casing mail.
Regarding that function, he was twice offered a limited duty assignment in which the mail casing
would be done for him by other carriers prior to his arrival at work.

Although Complainant is entitled to an effective reasonable accommodation, he is not entitled to
the accommodation of his choice. Jill M. v. Dept. of Veterans Affairs, EEOC Appeal No.
0120151292 (June 2, 2017). Although he wanted a utility dolly to be permanently assigned to his
route as an accommodation, there were four dollies available in the mailroom which he could
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have used. We therefore find that the Agency had fulfilled its duty to provide Complainant with
a reasonable accommodation.

Finally, in claiming, with respect to incident (3), that the CSM had been demanding excessive
medical documentation from Complainant in connection with his leave requests, Complainant
contends, in essence, that the CSM subjected him to a disability-related inquiry. The
Rehabilitation Act prohibits such inquiries, including inquires as to the nature and severity of a
disability, unless such inquiries are shown to be job-related and consistent with business
necessity. 29 C.F.R. § 1630.13; Hartless v. U.S. Postal Service, EEOC Appeal No. 0120101017
(June 4, 2010). An inquiry is disability-related if it is likely to elicit information about a
disability. See Torres v. Dept. of Veterans Affairs, EEOC Appeal No. 0120061190 (Feb. 6,
2008). In this case, the CSS and the CSM were already aware of Complainant’s medical
conditions. The CSM in particular had concerns that Complainant was taking between three and
four hours of leave for appointments that lasted no more than twenty minutes, and that
Complainant’s extended absences were having a negative impact upon the Agency’s delivery
operations. There are no indications anywhere in the record that the CSM or the CSS had
demanded that Complainant produce private or privileged medical information pertaining to the
nature or severity of his conditions. Consequently, we find that neither the CSM nor the CSS
had engaged in a prohibited disability-related inquiry.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish discrimination as alleged.

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),
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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.

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.

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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

July 13, 2017
Date