Lenny W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 5, 20180120160470 (E.E.O.C. Apr. 5, 2018) Copy Citation 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 (Southern Area), Agency. Appeal No. 0120160470 Hearing No. 490-2015-00004X Agency Nos. 4G-720-0081-13, 4G-720-0022-14 DECISION 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 October 17, 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. 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 Complainant worked as a City Carrier, Grade Level "Q," at the Post Office in El Dorado, Arkansas. Investigative Report (IR) 98-100. On October 4, 2013, Complainant filed Agency Complaint No. 4G-720-0081-13, in which he alleged that the Agency discriminated against him on the bases of race (African American), disability (herniated disc, lumbar radiculopathy, degenerative disc disease, work-related stress and depression), and reprisal (prior EEO activity) by denying his request for a reasonable accommodation and placing him off the clock on May 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. 0120160470 2 17, 2013 (hereinafter referred to as incident (1)). The Agency dismissed Complaint No. 4G-720- 0081-13 for failure to raise the matter with an EEO counselor, but in Complainant v. United States Postal Service, EEOC Appeal No. 0120140614 (April 11, 2014), the Commission reversed the dismissal and remanded the complaint for processing. Complainant filed Agency Complaint No. 4G-720-0022-14 on February 14, 2014, and amended it on August 1, 2014. In that complaint he identified the following additional eleven incidents which he characterized as failure to reasonably accommodate, disparate treatment, and discriminatory harassment on the bases of race, disability, and reprisal:2 2. On November 20, 2013, he learned that his October 2, 2013 request to be awarded Route 13 as a reasonable accommodation was not granted; 3. On November 30, 2013, his route was adjusted; 4. On December 18, 2013, his request for reasonable accommodation by reassigning him to the Camden, Arkansas Post Office was denied; 5. On December 20, 2013, his limited duty position was withdrawn; 6. On January 20, 2014, he was denied holiday pay; 7. On January 21, 2014, and continuing, he was denied sick leave; 8. On February 3, 2014, he was given a street observation; 9. Beginning February 3, 2014, and continuing, he has been given pivots that were outside his medical restrictions when other work was available, and if he refused to work, he was forced to take leave; 10. Beginning February 7, 2014, and continuing, he was denied pay adjustments; 11. On April 2, 2014, his request for advanced sick leave was denied; and 12. On April 29, 2014, he was issued a 14-day suspension. IR 152-53. Complainant identified the following management officials as being responsible for these allegedly discriminatory incidents; 1. The Post Office Operations Manager (POOM) who, from December 17, 2013 until April 5, 2014, was the Postmaster at the El Dorado, Arkansas Post Office; 2 For the reader’s convenience, the incidents are listed in chronological order. 0120160470 3 2. The Postmaster at the Camden, Arkansas Post Office (PM-C) who, from May 10, 2013 until December 16, 2013, was the Officer-In-Charge at the El Dorado, Arkansas Post Office; 3. The Health and Resources Manager (HM), who served at the Little Rock Processing and Distribution Center; 4. The Human Resources Manager (HRM) who also served at the Little Rock Processing and Distribution Center; 5. A Human Resources Management Specialist at the Little Rock Processing and Distribution Center who served as a Medical Case Worker (MCW); 6. The Customer Services Supervisor (CSS) at the El Dorado, Arkansas Post Office; 7. The Postmaster at the Junction City, Arkansas, Post Office (PM-JC) who during an unspecified time frame in February 2014 served as the Office-in-Charge at the El Dorado, Arkansas Post Office; and 8. The Postmaster at the El Dorado, Arkansas Post Office (PM-ED) beginning on April 23, 2014. IR 470-71, 559-60, 56, 593, 614, 632, 650, 759-60, 782. Complainant also identified the following four individuals as comparative employees: 1. Comparative (1), a White male City Carrier at the El Dorado Post Office with no prior EEO activity who had two knee replacements, was under permanent eight-hour work restrictions, and was given a temporary light duty assignment on June 5, 2014; 2. Comparative (2), a White male City Carrier at the El Dorado Post Office with no prior EEO activity and no medical conditions; and 3. Comparative (3), a White female City Carrier at the El Dorado Post Office with no prior EEO activity who could only work a few hours per day due to restrictions arising from an on-the-job injury and was given limited duty assignments on February 6, 2014 and February 14, 2014. 4. Comparative (4), a White female City Carrier who, according to Complaint had been awarded a route that she had requested. IR 477-78, 566, 984-89, 1051-53, 1056-57. The two complaints were consolidated for investigation under Complaint No. 4G-720-0022-14. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). 0120160470 4 Complainant timely requested a hearing but withdrew his request on April 7, 2015. Consequently, on October 17, 2015, 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. This appeal followed. Complainant’s Alleged Disability: Complainant identified as his disabilities the following conditions: work-related stress and depression; herniated lumbar disc; lumbar radiculopathy in both legs; and degenerative disc disease. IR 199. He averred that he had been experiencing stress over the previous eight years and back problems over the previous three years. IR 200, 222. When asked about diagnosis and prognosis, Complainant responded that he had three accepted claims before the Office of Workers’ Compensation Programs (OWCP) and that he did not know how long his conditions would last. IR 200-201, 205. He also stated that he had notified HM, HRM, MCW, POOM, PM-C, and CSS of his conditions. IR 202, 560, 616. According to HM, Complainant filed six workers’ compensation claims for work-related injuries, four of which were accepted by the OWCP. The conditions that were accepted included lumbar radiculopathy, lumbosacral radiculitis, and disc bulge. IR 594, 897. Restrictions gleaned from medical records dated November 24, 2012, May 23, 2013, and August 7, 2013, included: lifting and carrying up to five pounds continuously and 20 pounds intermittently for no more than four hours per day; walking up to four hours per day; climbing up to one hour per day; simple grasping up to six hours per day; and operating a vehicle up to six hours per day. IR 224, 597, 897, 900-02. Complainant had requested a reasonable accommodation through the Arkansas District Reasonable Accommodation Committee (DRAC) on February 5, 2014. IR 642. According to the DRAC information evaluation form dated February 13, 2014, Complainant’s medical restrictions included: standing up to five hours; walking up to four hours; no kneeling; and lifting up to five pounds continuously and twenty pounds intermittently. The duration of Complainant’s condition was designated as “unknown.†Limitations on major life activities other than work were identified as any function requiring Complainant to perform stooping, walking, lifting, or kneeling outside of what his physician recommended. In terms of work-related activities, Complainant was listed as being unable to perform any job that required walking more than four hours per day. IR 203, 644. POOM averred that according to his understanding of the CA-17 forms that Complainant submitted, Complainant could not walk for more than four hours per day even though one doctor indicated that Complainant could walk up to six hours per day. POOM further stated that Complaint could work up to eight hours per day and could not lift more than twenty pounds. IR 471-72 0120160470 5 Complainant’s Prior EEO Activity: Complainant averred that he had filed EEO complaints against POOM, PM-C, and other management officials. One of those complaints had been the subject of a settlement agreement dated July 26, 2014. The other one was Complaint No. 4G-720-0081-13, which, as previously noted, had been consolidated with the current complaint. IR 199, 205-206, 879-91. POOM and PM-C acknowledged that he had been named in numerous complaints filed by Complainant. IR 472-73, 561. Incident (1): Denied Reasonable Accommodation and Placed off Clock, May 17, 2013 Complainant averred that he suffered an injury on May 15, 2013 and had completed a CA-17 form that included restrictions of walking up to four hours per day, lifting up to twenty pounds, and working up to five hours per day. IR 284. He averred that he had submitted the CA-17 to PM-C on May 17, 2013, and that PM-C informed him that he would call as soon as he could provide a new job offer based on the CA-17. He also averred that the CSS called him later that day and had told him to stay off work until a new job offer could be made. IR 285. He averred that the Agency failed to engage in the interactive reasonable accommodation process, and maintained that the PM-C denied his request for a reasonable accommodation and had placed him off the clock. IR 286-93. PM-C responded that he provided Complainant with accommodations within the restrictions of the limitations set forth in the various CA-17s that Complainant submitted to him, noting that he had received three CA-17 forms within a two-week period, and that each one had completely different restrictions. IR 575. PM-C answered that Complainant was never denied a reasonable accommodation or placed off the clock. IR 575-576. When asked whether he placed Complainant off the clock, PM-C stated that Complainant came in with a doctor’s note that would keep him from performing any task, and that it was also not the CA-17 form that was required for a limited duty job offer. IR 576. CSS averred that she was not involved in this matter and was not aware of what decisions were made. IR 654-55. Incident (2): Denial of Route 13 as a Reasonable Accommodation, November 20, 2013 A bid announcement indicated that City Carrier Route No. 13 out of the El Dorado Post Office had opened for bidding on June 17, 2013 and would close on June 27, 2013. IR 562, 869-70. Complainant averred that the route remained open for bidding and was still vacant at the time he made his accommodation request. IR 208. When asked why he needed Route 13 as an accommodation, Complainant replied that the limited duty position that he was in at the time, Route 8, was limited to five hours. He further stated that Route 13 was an eight-hour position that was within his medical restrictions. Route 13 consisted of one hour of time in the office casing mail, three hours of street delivery that required walking, and four hours of collecting outgoing mail for processing. IR 208. 0120160470 6 He averred that he could have performed those functions as long as he did not lift more than twenty pounds. IR 208-09. He further averred that POOM and PM-C denied his accommodation request by failing to engage in the interactive process and not providing him with an explanation. IR 210-214. He maintained that he was treated less favorably than Comparative (2), who was allegedly given an accommodation. IR 219. Complainant acknowledged that he was on limited duty, that he could not walk for more than four hours and could not lift more than twenty pounds when he requested Route 13 as a reasonable accommodation in October 2013. IR 207-208. POOM averred that he was not assigned to the El Dorado Post Office at the time Route 13 was posted for bidding and thereafter. IR 473. According to PM-C, who was in charge of El Dorado at the time, Route 13 was posted without any bidders in the unit or any request for a reasonable accommodation. PM-C averred that Complainant first made his request for Route 13 as a reasonable accommodation in October 2013. IR 562. He averred that a CA-17 dated June 17, 2013, included restrictions on working more than five hours per day and lifting more than twenty pounds, as well as restrictions on kneeling, stooping, bending, twisting, pushing, and pulling. IR 562. He averred that Route 13 was not within Complainant’s limitations because it was a collections route with 27 collection boxes that required the carrier to bend over in order to clear mail and to lift tubs of mail into long-life vehicles (LLV’s) to transport to the post office. PM-C stated that Complainant’s restrictions would have precluded him from performing the majority of the route and he would have fewer hours available than he had in his then-current bid assignment, Route 8. IR 562-65. When the investigator asked PM-C if he knew of any employees outside of Complainant’s protected groups who were treated differently, PM-C stated that Comparative (4) had been on a route when it was posted, and that Complainant was senior to her and would have received it if he had bid on that route as well. IR 566. HM averred that although the functions of Route 13 fell within Complainant’s restrictions, Complainant did not request a reasonable accommodation related to being awarded Route 13. IR 597. MCW averred that he had no knowledge of Complainant asking for Route 13 as a reasonable accommodation. IR 620-23. Incident (3): Route Adjusted on November 30, 2013 Complainant averred that PM-C and POOM made the decision to adjust his route, and that they did over his objections. IR 225. PM-C was serving as the Office-In-Charge of the El Dorado Arkansas Post Office when Complainant’s route was adjusted on November 30, 2013. PM-C’s last day was on December 16, 2013. When asked why Complainant’s route was adjusted, PM-C gave the following answer: [Complainant’s] route was adjusted [d]ue to the adjustment of the overburden route on C-10. [That r]oute C-13 was an 8-hour assignment and not an 8-hour route meant that it had to get the extra time from C-10 even though they are 0120160470 7 located on the opposite sides of town. This is always accomplished in every delivery unit in Arkansas by minor adjustments to the gaining route. The term THRU adjustment is used by the address management and route inspection team. Thru adjustment means the small adjustment made to all routes (C-19/C-25/C-8) to move the territory from the overburdened route (C-10) to the “underburdened†route (C-13). IR 569-70. As previously noted, Complainant was assigned to Route 8, and consequently, a small adjustment was made to his route in order to balance the time blocks for Routes 10 and 13. In response to Complainant’s assertion that one quarter of his business customers were removed from his route, PM-C responded that when adjustments were made, they were made in terms of time blocks, pointing out that if a 55-minute section was added on one route, that same time block had to be subtracted from another route. IR 570. When asked why Comparative (3)’s route was not adjusted, PM-C responded that Comparative (3)’s route did not intersect between Route C-10, the losing route, and C-13, the gaining route. IR 573. Incident (4): Denial of Request for Reassignment to Camden, Arkansas Post Office as a Reasonable Accommodation, December 18, 2013 Complainant averred that he had a letter from his physician recommending that he be transferred to the Camden Arkansas Post Office because of the stress he had endured at El Dorado under POOM’s management, and that the Agency denied his transfer request in a letter dated December 18, 2013. IR 233-36. He identified POOM and HRM as the officials responsible for his request being denied. IR 235. He maintained that the Agency failed to engage in the interactive reasonable accommodation process. He averred that no management official suggested that he request an appointment with the Arkansas DRAC but admitted that he did not ask for such an appointment. IR 236-237. When asked whether he appeared before the DRAC regarding this accommodation, whether he produced medical documentation associated with this accommodation request, and whether he was required to undergo a medical examination, he responded that the Agency failed to engage in the interactive process. IR 237-239. When asked if he was given a reason for the denial of his request, he averred that PM-C told him it was because of safety issues and because POOM divulged his medical condition to the managers in his district. IR 240. POOM averred that PM-C, who by this time had become the Postmaster at Camden, denied Complainant’s request because he had no limited duty positions at the Camden Post Office and although Complainant was able to work for eight hours per day, he was still under a twenty- pound weight restrictions. IR 484, 486. PM-C averred that he did not receive a reasonable accommodation request to transfer from El Dorado to Camden, but that he did receive a transfer request while in Camden for Complainant. He further averred that Complainant’s request was turned down for safety reasons and because Complainant was unable to fulfill the duties of the jobs in Camden. IR 581-82, 585. He reiterated that there was not an open route in Camden, so there was no route available for a transfer request. IR 586. 0120160470 8 HRM confirmed that there were no limited duty jobs available at Camden. IR 637. HM averred that she was unaware that Complainant had requested a transfer to Camden as a reasonable accommodation. IR 602-03. Incident (5): Limited Duty Position Withdrawn, December 20, 2013 Complainant averred that his limited duty position was withdrawn and that the reason given was that he was not casing his mail fast enough. IR 223, 226-28. POOM took over for PM-C at El Dorado on December 17, 2013, several days before withdrawing Complainant’s limited duty position. IR 478. When asked why Complainant’s limited duty position was withdrawn on December 20, POOM gave the following answer: Because when I left in March of 2013 I had a job offer [Complainant] was working where we cased his route and then he came in to carry only. This was done because it was a burden on the [Agency] to have him splitting his route up every morning costing us much time in the office and requiring us to try and get the mail out to the carriers later in the day. We would still get calls from [Complainant] that he needed more help daily. It worked out good with him just coming in and taking the route to the street per his CA-17. We had several [Officers-in-Charge] during my absence and eventually one of them gave [Complainant] a new job offer to come in and start casing mail. When I came back on December 16, [2013], I pulled a 30-day work-hour load report and identified that [Complainant] was never making his office time. I at that point decided it was in the best interest of the [Agency] to give him another job offer which I would like to point out that he accepted to go back to coming in and carrying mail per his doctor’s instructions. He filed a grievance and I believe it was sent up to a dispute resolution team who ruled to let him case his route. He began doing that immediately and has ever since. IR 481. When asked whether Complainant was told that his limited duty position was withdrawn because he was not casing mail fast enough, POOM responded that Complainant was told that having him separating all the parcels, the DPS mail and cased mail was not in the best interest of the Agency, and that he, POOM, was offering Complainant the job that Complainant had when he had left. POOM pointed out that Complainant had the option to refuse the offer but did not. IR 481. He maintained that Complainant was treated the same as any other carrier, but that he “just didn’t want to be managed like the other employees.†IR 483. HM averred that the 2499 form was the form used for limited duty job offers, and that a new 2499 form had to be issued whenever the injured employee’s medical restrictions had changed in order to ensure that the employee’s medical restrictions were not violated. IR 600. She averred that Complainant’s limited duty was not withdrawn on December 20, 2013. She also averred that management could add or remove job duties based on the needs of the service and could determine the most efficient way to deliver mail. IR 600-01. 0120160470 9 Incident (6): Denial of Holiday Pay, January 20, 2014 Complainant averred that POOM denied his holiday pay and did not give him a reason for doing so. IR 247-48. POOM denied knowing anything about Complainant’s holiday pay situation. IR 488. When asked to explain in detail why other carriers were given their holiday pay, but Complainant allegedly was not, CSS answered: Complainant had LWOP 049 time for the day prior to this date [January 20, 2014] and his next scheduled day after this date, and therefore the system would not allow the holiday pay. You have to be in a pay status the day before and the day after to earn pay for the holiday. The Complainant had filled out a leave slip requesting LWOP for the morning after this date and was in a full day LWOP status the day prior. I do recall that the 204B that was filling in for me had called me at home and told me that she was showing missing time for this date and the system had generated LWOP, and I suggested that she try to put him in for holiday leave but the system rejected that also because of the LWOP status. IR 663. CSS averred that Comparative (3) was also in LWOP status due to an on-the-job injury and likewise was not given holiday pay due to LWOP status. IR 663. She also averred that Complainant’s adjustment was on the check for pay period 12, which was received on June 6, 2014. IR 662. Documentation of a holiday pay adjustment for Complainant indicated that Complainant was given eight hours of holiday leave pay during pay period 3 of 2014. IR 683. Incident (7): Denial of Sick Leave, January 21, 2014 and Thereafter Complainant averred that POOM was responsible for denying his sick leave requests on and since January 21, 2014. IR 253. He averred that he had enough available accrued sick leave to cover his requests. IR 254. He averred that from January 10-22, 2014, he was out of work due to a work-related injury that he had sustained on January 6, 2014, and that on January 13, 2014, he filed a CA-1 electing continuation of pay (COP). He averred that the Agency neither contested the claim for COP nor paid the COP, and that subsequently, he had to request that sick leave be paid instead. IR 255. POOM denied any involvement in approving Complainant’s sick leave requests. IR 490. CSS averred that the sick leave requests that Complainant made were a part of multiple pay adjustments that he had requested, and that the Department of Labor had provided assistance in sorting out these adjustments. IR 664. She averred that Complainant had requested sick leave thirteen times between January 22, 2014, and July 15, 2014. IR 664. The CSS provided documentation showing that all of Complainant’s requests for sick leave had been approved. IR 665, 686, 688, 689, 691, 698, 699, 703, 704, 706, 707, 709. A grievance settlement dated April 23, 2013, indicated that management would approve 124 hours of sick leave for Complainant covering the period from January 10, 2013 through March 18, 2014. IR 878. 0120160470 10 Incident (8): Street Observation, February 3, 2014 Complainant averred that POOM made the decision to conduct a street observation of him on February 3, 2014. IR 260. He averred that PM-JC informed him that she was performing the street observation in order to determine how long his street time was for the limited duty position he had taken on December 21, 2013. IR 260. He stated that the street observation was conducted in order to force him to work beyond his restrictions, particularly his four-hour walking restriction. He averred that POOM had given him five hours of street duties that all entailed walking or dismounting. IR 260. On February 5, 2014, Complainant submitted a request for a 3999 route inspection pertaining to the street observation. IR 643. POOM averred that he was exercising his prerogative as a manager in giving Complainant a street observation, and that all of the carriers were aware of managerial prerogatives. IR 493. He averred that he made the decision to give Complainant a street observation in order to ascertain whether Complainant was walking for four hours per day in accordance with his medical restrictions. IR 493-94. He averred that the results of the observation indicated that Complainant was walking only for two hours. IR 494. POOM averred that Complainant was never denied work due to the street observation. He averred that Complainant could have done more work on his assigned route than he was doing and still remain within his restrictions. He also noted that Complainant was bringing mail back to the office that should have been delivered. IR 494-495. In response to Complainant’s assertion that he was being treated differently than Comparative (3), POOM stated that, unlike Complainant, Comparative (3) was restricted to 30 minutes of walking per day, was not bringing mail back to the office, and was not refusing to carry. IR 496. PM-JC denied that she was performing an official street observation on Complainant but acknowledged that POOM asked her to gauge how much time Complainant actually spent walking in order to ensure that he was not exceeding his restrictions. She stated that Complainant had just agreed to a new job offer and they needed to find out at what point they needed to stop him from walking. IR 762-63, 768. She averred that she clocked his time both in the office and on the street, and that she had observed that he had only been walking for two hours. She averred that Complainant had asked her for a riding pivot to another route but that she denied his request because he still had walking to do on his route, noting that he could have finished his entire route and still remain within his four-hour walking restriction. IR 769. PM- JC maintained that Complainant was never denied work as a result of the street observation. Rather, he would just refuse to walk for the full four hours within his medical restrictions. IR 769. According to the documentation of a decision by the Arkansas DRAC on Complainant’s request, dated February 13, 2014, Complainant was requesting as a reasonable accommodation that a “3999†be performed because he believed that the job offer required him to work more than four hours per day. IR 645. According to the Agency’s website, the term “3999†refers to Agency Form 3999, which documents the inspection of a letter carrier route. Under the terms of the Arkansas DRAC’s decision, POOM would have to perform the route inspection in order to 0120160470 11 ensure that none of Complainant’s job duties on the route exceeded his medical restrictions. IR 644-45. Incident (9): Given pivots outside his medical restrictions and forcing him to take leave if he refused to work, February 3, 2014 and continuing Complainant averred that after the street observation, he was given pivots that were outside of his work restrictions. IR 261. As of February 2014, Complainant’s medical restrictions included walking up to four hours, lifting up to twenty pounds and working up to five hours. IR 315. He maintains that he was given pivots which required him to walk for up to five hours, and that there were vacant routes requiring curbside deliveries which he could have done while still remaining within his medical restrictions. IR 315-16. He averred that when he tried to raise the matter with POOM and PM-JC, he was told that no other work was available. He also averred that POOM and PM-JC would continue to offer work that required five hours of walking only. IR 316-17. POOM denied that Complainant had been given any pivots that required duties or tasks that violated his restrictions. IR 513. He averred that Complaint never walked for five hours and reiterated that Complainant would typically walk for no more than two hours and would bring undelivered mail back to the office. IR 513. He averred that neither he nor PM-JC had ever violated his medical restrictions, and that the only time he could recall giving a Complainant a pivot was when Complainant was riding on another route and he directed Complainant to return to his own route and finish his walking deliveries. IR 513-14. POOM admitted that there were other vacant routes that had curbside deliveries within Complainant’s restrictions, and that Complainant would be assigned those routes if he had finished walking for four hours on his own route. IR 514. As to Complainant being forced to take leave, POOM averred that Complainant refused assignments almost every day, and that he would quit his route, return to the office with undelivered mail, and refused to do any more work for the day. POOM reiterated that Complainant was never forced to take leave, but was required to take leave anytime he left work early. IR 515. CSS and PM-JC both averred that since February 3, 2014, Complaint had not been given any pivots at all. They denied that Complainant was ever given work that exceeded his medical restrictions. They also stated that Complaint would refuse to complete assignments, get mad, and leave work early after signing the required leave slip. IR 673-75, 774-76, 781. An email from POOM to HM dated February 3, 2014 indicates that POOM had made Complainant a job offer on February 1, 2014, that including walking up to 4 hours per day and working up to five hours per day. IR 780. Incident (10): Denied Pay Adjustments, February 7, 2014 and Continuing Complainant averred that POOM and CSS denied him a pay adjustment on February 7, 2014 and had done so because he made an allegation that the Agency breached the EEO settlement 0120160470 12 agreement dated July 26, 2013. He averred that the Agency failed to restore five weeks of sick leave as it had previously agreed to. IR 267-68. POOM averred that he was not involved in processing Complainant’s pay adjustments and deferred to CSS. IR 497. HM averred that sick leave adjustments were made for Complainant on or about March 22, 2014, which corresponded to Pay Period 8 of FY 2014. IR 605-06. When asked if a pay adjustment was supposed to have been made to restore five weeks of sick leave to Complainant, she replied that she was not sure and was not aware of the settlement agreement. IR 653. Various forms, including form 2240 and form 3971 document pay and leave adjustments that Complainant had received between February and July of 2014. IR 683-686, 689, 710-12. Incident (11): Denial of Advanced Sick Leave Request, April 2, 2014 Complainant averred that he requested advanced sick leave after filing an OWCP claim for traumatic injury in January 2014, and that POOM denied his request on April 2, 2014, without giving him a reason. IR 312-13. POOM averred that he was not involved in the matter. IR 509- 10. CSS averred that employees may request advanced sick leave of they have to be off for an extended period of time and they do not have enough sick leave to cover their expected absences. She averred that it was within management’s discretion to approve it. IR 670. She also averred that Complainant had balances of approximately 200 hours of sick leave and 190 hours of annual leave. IR 670. When asked whether Complainant requested advanced sick leave on or about April 2, 2014, CSS responded that she could neither find any documentation or otherwise recall that he had requested advanced sick leave. IR 670. PM-JC also averred that employees could only request advanced sick leave when they run out of accrued leave, and that Complainant had approximately 200 hours of accrued sick leave at the time he requested advanced sick leave. IR 771. Incident (12): Issuance of 14-Day Suspension, April 29, 2014 Complainant averred that PM-ED issued him a notice of proposed suspension on April 29, 2014, on the grounds that he had left mail in the back of the LLV that he was using. IR 299-300. He also averred that POOM was involved. IR 299. He opined that the discipline was too severe because he did not have a prior disciplinary record. IR 301, 303. PM-ED averred that she issued Complainant the suspension due to delaying of first-class mail. She averred that Complainant had left two tubs of outgoing first-class mail overnight in his LLV on the night of April 15, 2014. PM-ED stated that was considered a severe infraction because many of those mail items included tax returns that would be filed late, causing customers to be penalized by the Internal Revenue Service. IR 784-86, 794-96, 904-11, 914. POOM acknowledged involvement in the matter as the concurring officer, and averred that he agreed with the proposing official due to the extensive amount of mail Complainant had left in the LLV. He averred that Complainant had been issued prior disciplinary actions but they had all been removed from his personnel file through an EEO settlement agreement. IR 502-04. 0120160470 13 In addition, POOM averred that as a result of the grievance process, the suspension was reduced to a letter of warning. IR 505. CSS was also issued a letter of warning for failure to ensure that the LLV was cleared of mail in connection with that same incident. IR 929. 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 lawâ€). Reasonable Accommodation – Incidents (1) (2), & (4): Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (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. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). For purposes of analysis, we will assume that Complainant is a qualified individual with a disability. Therefore, the only question before us on the reasonable accommodation claim is whether the Agency satisfied its statutory obligation. As a qualified individual with a disability, Complainant would be entitled to an effective accommodation, but not necessarily the accommodation of his choice. Kristie D. v. U.S. Postal Service, EEOC Appeal No. 0120160236 (Feb. 6, 2018); Gerard M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120150491 (Feb. 21, 2018), citing Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). With respect to incident (1), Complainant contends that he was denied a reasonable accommodation and placed off the clock on May 17, 2013. However, according to PM-C, Complainant had presented him with three CA-17 forms within a two-week period that had different medical restrictions identified. He denied that Complainant was placed off the clock or otherwise denied a reasonable accommodation. During the interactive process between Complainant and PM-C, there was some confusion on the part of PM-C as to exactly what Complainant’s restrictions were. But, contrary to Complainant’s contention, we find no indications that either PM-C or CSS failed to attempt to provide Complainant with a reasonable accommodation. 0120160470 14 Regarding incident (2), there is an inconsistency in the statements of PM-C and HM as to whether Complainant was able to perform the essential delivery functions on Route 13, the route to which Complainant sought to be assigned as a reasonable accommodation. PM-C averred those functions were outside of Complainant’s restrictions while HM stated the opposite. However, both of them averred that Complainant neither bid on Route 13 when it opened up for bidding in June 2013 nor submitted a reasonable accommodation request in which he explicitly asked for Route 13. MCW, who would have been involved the process, likewise averred that he had no knowledge of Complainant asking for Route 13 as a reasonable accommodation. Concerning incident (4), PM-C explained that there were no open routes at Camden that were within Complainant’s medical restrictions. Even though Complainant did not receive the accommodations that he preferred, he was always given limited duty carrier assignments that remained within his work restrictions. We therefore find that the Agency satisfied its statutory obligation to provide Complainant with a reasonable accommodation for his back condition. Disparate Treatment – Incidents (1) through (12): 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). This analysis also applies to disparate treatment claims brought under the Rehabilitation Act. Prewitt v. United States Postal Service, 662 F. 2d 292, 310 (5th Cir. 1981). As a first step, Complainant is usually required to establish a prima facie case of disparate treatment by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate and nondiscriminatory reasons for each incident at issue in this complaint. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). With regard to incident (1), Complainant was never placed off the clock, but there was some confusion as to what Complainant’s medical restrictions actually were, given the multiple CA-17 forms that Complainant had submitted within a two-week time frame. As to incident (2), Complainant neither bid on Route 13 when it opened nor explicitly requested that he be given Route 13 as an assignment. Moreover, it is unclear from the affidavits of PM-C and HM whether Route 13 included job functions that fell within his medical restrictions. Concerning incident (3), time blocks were moved from Complainant’s route to other routes in order to meet the demands of mail delivery at the time. With respect to incident (4), there were no jobs at the Camden Arkansas Post Office that Complainant could perform within his medical restrictions. Regarding incident (5), Complainant’s limited duty position was adjusted due to changing delivery needs and a change in his medical restrictions. With regard to incident (6), Complainant was not given holiday pay in January of 2014 because he had been in LWOP status on the days before and after the date in question, January 20, 2014. 0120160470 15 He was later given 8 hours of holiday leave through a pay adjustment. As to incident (7), 124 hours of sick leave owed between January and March of 2014 were restored. Concerning incident (8), POOM had directed PM-JC to observe Complainant on his street deliveries in order ascertain how much time Complainant actually spent walking, and whether he was exceeding his four-hour restriction on walking. With respect to incident (9), neither PM-JC nor CSS had given Complainant any pivots because he had not completed the four-hour walking deliveries on his assigned route. They noted that Complainant frequently walked for no more than two hours, and would return to the office carrying undelivered mail. Regarding incident (10), Complainant had been given all of the pay adjustments to which he was entitled, according to various 2240 and 3971 forms. With regard to incident (11), Complainant was not granted advanced sick leave in April 2014 because he still carried an accrued sick leave balance of approximately 200 hours. As to incident (12), Complainant was issued a fourteen-day suspension because he had left two tubs of first-class mail in a delivery vehicle the night of April 15, 2014. This infraction was considered serious because of the presence of tax returns among those letters that would be filed late, resulting in possible penalties for postal customers. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanations for those incidents are pretexts 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); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't 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 Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). When asked why he believed that his race, disability, and prior EEO complaints were motivating factors in the above-described incidents, Complainant averred that Comparatives (1), (2), (3), and (4) were not treated in the same fashion that he was, that he had filed several EEO complaints against the officials he named in his current complaint, and that he had prevailed in a settlement agreement on at least one of those prior complaints. IR 229-30, 232, 243-44, 28-49, 254-55, 259, 262-64, 269-70, 285, 294-95, 297-99, 301, 304, 306, 313-14, 316-18. In particular, Complainant averred that in concurring with the 14-day suspension issued by PM-ED, POOM has referred to him in other matters as a “crow,†which he characterized as a racial epithet. IR 304. POOM denied that Complainant had been treated differently than other carriers. He maintained that Complainant did not like to be managed by anyone. IR 487-88, 490. When asked about the “crow†comment, POOM responded as follows: Q: Have you ever referred to Complainant by using any racial epithet such as crow? A: No. I never used crow as a racial epithet. Back in 2011 we had late trucks all the time causing too much waiting time in many offices. I’m not sure of the dates 0120160470 16 but there was a morning when I walked out of my Postmaster office and onto the workroom floor and notice we had every carrier in the building sitting on their ledges with their feet swing up from their cases. Some were just leaning on the cases talking; some were just in other carrier cases talking to other carriers while some were outside in the smoking area. This always disturbed me to be paying carriers $30.00 an hour and have nothing for them to do. I remember saying it reminded me of crows sitting on a clothesline with nothing to do. I don’t even know if [Complainant] was there that day. *** That hit [PM-ED] as being very funny. She even dialed my extension that same day and said she just wanted me to know that all her crows were gone to the street. We decided that crow was going to be our acronym for carrier routes. IR 504-505. It is true that discriminatory statements made by a responsible management official are an indicator of pretext. See Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In his appeal statement Complainant argues that “crow†has “always meant a racist derogatory term for African Americans.†However we find that Complainant has not argued that POOM and PM-ED have directly called him “crow†or used it in the workplace to other Agency employees. Complainant’s documentary evidence for the usage of “crow†consisted of an email from 2011, 3 years prior to the issuance of the 14-day suspension. Complainant has not presented affidavits, declarations, or unsworn statements from witnesses other than himself nor documents that contradict POOM’s description of the context of his “crow†comment. While we find the Agency officials’ usage of the term “crow†to be questionable, we do not find that it is evidence of pretext to show that the issuance of the 14-day suspension was discriminatory. We therefore find, as did the Agency, that none of the officials named in the instant complaints were motivated by unlawful considerations of Complainant’s race, disability or previous EEO activity in connection with their actions at issue in the above-referenced twelve incidents. Harassment Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus on any of his alleged bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 0120160470 17 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 that he was discriminated against 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), 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). 0120160470 18 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 April 5, 2018 Date Copy with citationCopy as parenthetical citation