0120142191
11-30-2016
Michal L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michal L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120142191
Agency No. 4G-770-0241-13
DECISION
On May 14, 2014, Complainant filed an appeal from the Agency's April 10, 2014, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issue presented in this case is whether the Agency correctly determined that Complainant did not demonstrate that he was subjected to discrimination or reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full Time City Carrier at the Agency's Richmond Post Office facility in Richmond, Texas. Complainant alleged that on May 28, 2013, his supervisor (S1) caused him injury by jeopardizing his safety and health when she required Complainant to work in the direct sun. As a result, Complainant suffered heat exhaustion. He experienced severe headaches and became disoriented while standing in direct sun and delivering the mail. Due to this incident, Complainant missed work from May 28, 2013, through October 8, 2013. Complainant indicated that S1 told him not to use an umbrella while standing in direct sun in over 100-degree temperatures yet other employees were permitted to use umbrellas. He also maintained that up until the arrival of S1 he had been able to use an umbrella. He indicated that he suffered damage, and loss of income due to S1's discriminatory act.
Complainant maintained that beginning the second week of June 2013, and continuing, he was denied the opportunity to bid on all available routes. He also claimed that he was denied limited duty work when work was clearly available. Finally, Complainant maintained that he was unjustly issued a 14-Day Suspension for not reporting the incident in a timely manner. Complainant reported on June 27, 2013, that he was involved in a preventable industrial accident that occurred on May 28, 2013. Complainant left early that day and submitted a leave form to S1 indicating that he was "not feeling well."
Complainant's medical documentation indicated in a note dated June 26, 2013, that Complainant was unable to work from May 29, 2013 to July 5, 2013, and would be further evaluated at his July 5, 2013 appointment. On a Duty Status Report, dated July 5, 2013, Complainant reported an episode of dizziness and disorientation. Clinical findings revealed that Complainant was suffering from depression, anxiety disorder, and headaches. The report indicated that Complainant could resume work on July 8, 2012, on a part-time basis for four hours per day provided that the temperature was below 80 degrees.
On October 7, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Indian-American), color (Brown), national origin (East Indian), disability (diabetes, depression, injury), age (50), and reprisal for prior protected EEO activity when:
1. On May 28, 2013, his Supervisor required him to work in increased heat exposure and direct sun;
2. Beginning in the 2nd week of June 2013, and continuing, he was not allowed to bid on available routes;
4. Beginning July 9, 2013, and continuing, he was denied limited duty work; and
5. On August 2, 2013, he was issued a 14-Day Suspension.2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.3 Specifically, the Agency found that assuming arguendo that Complainant established a prima facie case of discrimination, management articulated legitimate, nondiscriminatory reasons for their actions. With regard to claim no. 1, S1 noted that "Management does not control weather; working in inclement weather is a condition of employment from application phase to retirement." She maintained that she advised Complainant to use his allotted Postal uniform allowance to purchase regulation gear that did not hinder his ability to perform his duties.
With regard to claim no. 2, management maintained that Complainant like all Full-Time Regular Carriers are permitted to bid on available routes. In fact, Complainant placed a bid for Route 06002 and was awarded that bid. Management also explained that with respect to claim no. 4, Complainant being denied limited duty work, his request for Limited Duty was invalid, as Complainant's request was for "work available in less than 80-degree weather." S1 indicated that a Carrier's duties and responsibilities are performed outdoors, and any work associated with the Postal Service would put the Complainant in direct violation of weather exposure. Moreover, S1 indicated that Complainant's work status was classified as Light duty as his injury appeared to be a personal injury and was not limited duty because it was not considered to be a work place injury. He was mailed Light Duty Request forms but did not return the forms. S1 stressed that Complainant was not denied Light Duty work he simply failed to submit the required documentation.
Further, with regard to claim no. 5, S1 indicated that she issued the 14-Day Suspension because Complainant failed to report an accident in a timely manner. Notwithstanding, the discipline was settled/withdrawn, pursuant to a grievance settlement between the Postmaster and the Union. S1 indicated that she did not consider Complainant's protected bases or prior EEO activity with regard to any of the claims. The Agency determined that Complainant did not show that its legitimate, nondiscriminatory reasons were pretext for discrimination. Accordingly, the Agency found that Complainant did not demonstrate that he was subjected to discrimination and/or reprisal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that many employees of other races are permitted to use umbrellas, while standing in direct sun. He maintains that it was a common practice among mail carriers to use umbrellas. Complainant indicates that until S1 arrived he used an umbrella. He contends that he was the only employee ordered to not use an umbrella.
With respect to claim no. 2, Complainant argues that he was not given information about all available routes because S1 (African American) was saving a route for an African American employee. Complainant explains that after he successfully bid another position was announced and the African American employee received that bid.
Complainant also argues with respect to claim 3 that beginning on May 29, 2013, and continuing, he was denied continuation of pay. He maintains that he reported his injury over the telephone, and in writing. He indicates that he requested the forms for continuation of pay but S1 falsely stated that he did not report the injury and file the claim within 30 days. As a result, he indicates that he lost income. Again he maintains that other employees were allowed continuation of pay.
Regarding claim no. 4, Complainant contends that he was denied limited duty work. Complainant argues that his injury was not a personal condition i.e., light duty but was an on the job injury as he suffered heat exhaustion from standing in direct sun light and it was not from his diabetes. Complainant contends that other employees were allowed limited duty.
Further, Complainant contends that on August 2, 2013, he was issued a 14-day suspension citing safety violations and the failure to report an injury. Complainant maintains that on May 29, 2013, he called in to report the injury and to request continuation of pay. He asserts that his requests for the forms were ignored by S1. He has certified return receipts that prove that his requests were received but not acted upon. He also argues that other employees were not disciplined after they were injured, even when their injury was caused by horseplay on the work floor.
In response, the Agency requests, in pertinent part, that its FAD be affirmed.
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").
ANALYSIS AND FINDINGS
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination and reprisal that the Agency articulated, legitimate, nondiscriminatory reasons for claim nos. 1, 2, 4 and 5. We find that other than Complainant's conclusory statements he has not provided any evidence which suggests that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination or reprisal.
On appeal, Complainant contends that management took all of these actions against him because of his protected bases. We find however that the record does not support his argument. Complainant has presented no similarly situated individuals who were treated more favorably than he was including not identifying any employee that used umbrellas in the sun. Moreover, although Complainant suggests that this practice may have been allowed prior to S1's arrival, as a new supervisor S1 had the authority to have employees comply with the Agency's dress code policies. Further, with regard to claim no. 2, we find that Complainant does not offer any evidence other than his own conclusory statements that he was not allowed to bid on jobs during his absence. As has been stated above, Complainant successfully bid on a position. Complainant's allegation that S1, the African American supervisor, was saving a bid position for an African American employee is not supported by the record. Moreover, no persuasive evidence was presented that established that Complainant was in any way prohibited or prevented from bidding on the position in questioned.
Further, with respect to Complainant's claim that he was denied continuation of pay, claim no. 3, we find that the Agency properly dismissed this matter for filing to state a claim. As the Agency indicated Complainant's injury was considered light duty and the forms sent to him regarding light duty were not returned. Further, we note that continuation of pay is not administered by the Agency but is controlled by the Workers' Compensation Program.
Additionally, with regard to Complainant's argument that he was denied limited duty work, again we point out that there is a difference between limited duty, which is an injury that is work related and light duty which addresses a personal injury. In the instant case, Complainant does not show that his injury was related to his job. Finally, with respect to his suspension, we find that Complainant has not provided any evidence which suggests that he was subjected to discrimination and/or reprisal.
CONCLUSION
Accordingly, the Agency's FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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. 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
_11/30/16_________________
Date
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.
2 Complainant initially included three additional allegations (claim no. 3 - denied continuation of pay, claim no. 6 - denied grievance rights, & claim no. 7 - false statements made on his OWCP paperwork). On November 4, 2013, these claims were dismissed, as failing to state a claim. The FAD found that these claims were properly dismissed. Complainant only addresses claim 3 on appeal. The other two claims therefore will not be discussed.
3 It was noted by the investigator that Complainant did not provide a statement for the investigation.
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