Mario H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 6, 20180120171670 (E.E.O.C. Nov. 6, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mario H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120171670 Hearing No. 510-2016-00347X Agency No. 6U-000-0006-16 DECISION On April 7, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 9, 2017, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. ISSUE PRESENTED Whether the Agency discriminated against Complainant on the bases of disability, race, national origin, and sex when it allegedly failed to accommodate him. 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. 0120171670 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Field Sales Representative at the Agency’s Sales-South Florida District in Pembroke Pines, Florida. In mid- August 2015, Complainant’s first-line supervisor (S1) informed the employees at the Pembroke Pines location that everyone would move to Fort Lauderdale, Florida the first week of September. On or about August 28, 2015, a co-worker (C1) informed Complainant that she was not moving to Fort Lauderdale, and was allowed to pick an office location close to her home because she requested a reasonable accommodation to care for her son. See Report of Investigation (ROI) at pg. 58. On August 28, 2015, Complainant sent S1 an email requesting an accommodation. Complainant stated that he was aware that C1 was provided an accommodation, and requested the same accommodation of a work location closer to his current Pembroke Pines office. Complainant stated that he is a disabled veteran and suffers from “back issues.” Complainant added that if he had to drive 80-plus miles per day to Fort Lauderdale, it would aggravate his condition. See ROI at pg. 142. On September 8, 2015, Complainant followed up with S1, who stated that he would discuss Complainant’s request with his second-line supervisor (S2). S1 informed Complainant that he would know something by October 2, 2015. See ROI at pg. 60. Complainant was out of the office on extended sick leave starting on November 2, 2015.2 See ROI at pg. 101. Complainant’s request was referred to the Reasonable Accommodation Committee (RAC), who sent letters to Complainant requesting additional information and documentation on January 14, January 27, and March 17, 2016. See ROI at pgs. 138-141. On January 26, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (disabled veteran) when the Agency failed to provide him with a reasonable accommodation since August 28, 2015. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew his request. Consequently, 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. The Agency found that Complainant had not established that he was an individual with a disability because he did not provide medical documentation. Additionally, the Agency determined that Complainant did not offer testimony identifying any major life activity impacted by his condition. The Agency noted that stating that he is a disabled veteran does not establish that Complainant is an individual with a disability under the Rehabilitation Act. 2 Complainant returned to the office in July 2016. 0120171670 3 The Agency also found that Complainant had not shown that he was a qualified individual with a disability because he was out of the office for much of the relevant time period, and was unable to perform the essential functions of his position. S1 stated that he requested medical information from Complainant, who did not provide it. The Manager, Disability Program (MDP) stated that Complainant never responded to the requests for medical documentation, but that they were allowing him another opportunity to respond. The Agency found that management officials attempted to engage in the interactive process, but that Complainant did not respond. The Agency concluded that Complainant had not shown that the Agency failed to accommodate him because he did not show that he was an individual with a disability; was not otherwise qualified; and failed to engage in the interactive process. The Agency also found that Complainant had not established a prima facie case of disability discrimination under a disparate treatment theory. The Agency noted that Complainant had not established that he was an individual with a disability, or that the circumstances surrounding the denial of his request for a reasonable accommodation gave rise to an inference of discrimination. Complainant provided names of comparators whom he alleged were treated more favorably. For example, Complainant stated that C1 was allowed to work closer to her home as a reasonable accommodation. However, S1 stated that this was not a reasonable accommodation. S1 stated that he allowed C1 to work in an office closer to her home because many of her customers were closer to that office. The Agency found that C1 was not treated more favorably than Complainant because her request for a reasonable accommodation was also denied. The Agency determined that the other named comparators held different positions, and reported to different supervisors, and therefore, were not similarly situated. The Agency assumed, for the sake of argument, that Complainant established a prima facie case of disability discrimination, and found that the management officials articulated legitimate, nondiscriminatory reasons for their actions. S1 stated that Complainant was not denied a reasonable accommodation because his request was neither approved nor denied. MDP stated that they had not yet received his medical information, and she was not aware of any decision to deny Complainant’s request. The Agency then found that Complainant had not shown that the reasons were pretext for discrimination. Complainant alleged that no other employee was asked to go to the RAC, and that other employees were granted their requests to have an office in a certain area. However, the Agency found that Complainant did not provide any evidence to support his assertions, or anything to show that the Agency officials harbored a discriminatory animus towards members of his protected group. The Agency concluded that Complainant had not shown by a preponderance of the evidence that he was discriminated against based on his disability when his request for a reasonable accommodation was allegedly denied. Complainant filed the instant appeal, and submitted a statement in support of his appeal on May 3, 2017. The Agency filed an opposition brief on May 31, 2017. 0120171670 4 CONTENTIONS ON APPEAL On appeal, Complainant states that S1 was acting for his permanent supervisor (S3), who was out on extended sick leave. Complainant argues that the investigator did not speak with S3, who returned to work in December 2015, and left the Agency on February 19, 2016. Complainant states that S3 would have stated that she was aware of Complainant’s medical limitations. Complainant also argues that S1 did not ask him to provide written medical documentation, and that Complainant had reservations about sharing his medical information with S1 because he had improperly disclosed S3’s medical information. Complainant also argues that S1 and S2 did not follow the Agency’s reasonable accommodation policy when it did not notify him of a delay, or provide a status update. Complainant states that when he received the January 14, 2016 letter, he made a doctor’s appointment for February 11, 2016. Complainant stated that he mailed his information, and participated in a teleconference with the RAC on April 27, 2016. When Complainant returned from leave on July 8, 2016, he reached out to the RAC for an update. Complainant states that he has since withdrawn his request. With regards to Complainant’s claim of disparate treatment, he states that he “checked” the bases for race, national origin, and sex, which the Agency omitted. The Agency argues that Complainant has not provided anything in the record to show that he is substantially limited in any major life activity. The Agency also states that even if Complainant had established that he was an individual with a disability, the record does not reflect that he was denied a reasonable accommodation. The Agency states that management has in good faith engaged in the interactive process, and that Complainant ultimately withdrew from the process. ANALYSIS AND FINDINGS Standard of Review 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”). 0120171670 5 At the outset, we note that Complainant provides additional information about the processing of his request for a reasonable accommodation that occurred after the completion of the investigation of this complaint. The affidavits from the parties were obtained from March through May 2016,3 and the investigation was submitted to the Agency on May 3, 2016. The record does not contain any statements from the managers, or other evidence, regarding the additional events post investigation. Accordingly, we will not consider this new information, and will only consider the existing record of evidence. Reasonable Accommodation Under the Commission’s regulations, 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. In order to establish that Complainant was denied a 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. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities include such functions as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to the ability of most people in the general population. 29 C.F.R. § 1630.2(j)(ii). We find that Complainant has not shown that he is an individual with a disability. We note that an individual is not entitled to reasonable accommodation when the disability, or need for accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer. See Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012). In this case, Complainant’s need for an accommodation for his “back issues” is not obvious, and the Agency is entitled to request medical documentation to establish that he is an individual with a disability. Even if S3 was aware of Complainant’s medical issues, it is not enough to show that Complainant is an individual with a disability. S1 stated that he requested medical information, and Complainant stated that he would not provide any to S1 due to his reservations about S1’s ability to keep his information confidential. 3 S2 submitted one late supplemental affidavit in July 2016, in which she provided information about the named comparators. 0120171670 6 The record does not contain any medical documentation showing that Complainant is substantially limited in a major life activity. Further, in Complainant’s affidavits, when asked about his limitations, he only stated that his “medical restrictions and conditions were released… to HQ- RAC.” See ROI at pg. 55. While we note that the interactive process was still underway during the processing of Complainant’s EEO investigation, Complainant did not provide documentation showing that he was an individual with a disability to the EEO investigator. Accordingly, we find that Complainant has not established that he was entitled to a reasonable accommodation; and has not shown that the Agency discriminated against him based on his disability when it allegedly failed to provide him with a reasonable accommodation. We note that a manager’s failure to comply with an internal reasonable accommodation policy is not dispositive of a violation of the Rehabilitation Act. With regards to the delay in referring Complainant’s request to the RAC, it can be argued that this was a failure to engage in the interactive process on the Agency’s part. However, the Commission has recognized that an agency’s failure to engage in the interactive process does not, in itself, constitute a violation of the Rehabilitation Act. See Pitts v. U.S. Postal Serv., EEOC Appeal No. 0120130039 (Mar. 13. 2013) (citing Doe v. Social Sec. Admin. Appeal No. 01A14791 (Feb. 21, 2003)). Liability depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation. Id. Accordingly, the fact that the Agency failed to properly engage in the interactive process, does not, by itself, demand a finding that Complainant was denied a reasonable accommodation. Rather, to establish a denial of a reasonable accommodation, Complainant must establish that the failure to engage in the interactive process resulted in the Agency’s failure to provide a reasonable accommodation. Id. In this case, Complainant has not established that the Agency’s delay in referring Complainant’s request to the RAC resulted in the Agency’s failure to provide a reasonable accommodation. When Complainant made his initial request, S1 requested medical information, which Complainant admittedly refused to provide. Complainant went on extended leave, and during this time, Complainant’s request was referred to the RAC, which began to process the request. By the conclusion of the investigation, the Agency was still processing his request, and Complainant has not shown that the Agency failed to accommodate him. As such, we find that Complainant has not shown that the Agency discriminated against him based on his disability when it allegedly failed to provide him with a reasonable accommodation. Disparate Treatment Generally, claims of disparate treatment are examined under the 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 action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 0120171670 7 Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community 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 Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Complainant argues that the Agency omitted his bases of race, national origin, and sex from his discrimination complaint. When the Agency issued the Acceptance letter, these bases were not included, and Complainant was instructed to provide a written response within seven (7) days specifying any disagreement. See ROI at pg. 28. There is no evidence that Complainant contacted the Agency to notify them that these bases should be included in his complaint. However, for the purposes of this decision only, we will assume, arguendo, that Complainant established a prima facie case of discrimination based on disability, race, national origin, and sex. We find that the management officials proffered legitimate, nondiscriminatory reasons for the Agency’s actions. S1 stated that C1 was allowed to work from an office in Pembroke Pines for business reasons. He stated that her customers were located closer to her home, and that allowing C1 to remain closer would provide her more time with her customers. S2 concurred that C1 would work more effectively by being closer to her customers. S1 stated that the vast majority of Complainant’s territory was the Ft. Lauderdale, Sunrise, and Pompano Beach territory. Additionally, Complainant has not shown any evidence of pretext of discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir.2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. Complainant argued that S1 misstated his territory, but did not provide any documentation to support this assertion. Unfortunately, Complainant withdrew his request for a hearing before an EEOC AJ, and, as a result we do not have the benefit of an AJ’s credibility determinations of the witnesses in this case. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made): Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). 0120171670 8 Complainant has not shown evidence that S1 is not worthy of credence, and has made bare assertions that management officials discriminated against him based on his disability, race, national origin, and sex, which are insufficient to prove pretext, or show that their actions were discriminatory. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision that Complainant has not shown that the Agency discriminated against him based on his disability, race, national origin, or sex, when it allegedly failed to provide him with a reasonable accommodation. 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. 0120171670 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 November 6, 2018 Date Copy with citationCopy as parenthetical citation