Minh G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 23, 20180120172702 (E.E.O.C. Oct. 23, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Minh G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120172702 Agency No. 4G-700-0023-16 DECISION On July 31, 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 June 30, 2017, final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant was an applicant for employment as a City Carrier Assistant at the Agency’s Covington Post Office in Covington, Louisiana. On March 2, 2016, Complainant filed a formal complaint. Complainant claimed that the Agency failed to provide a reasonable accommodation and discriminated against him based on disability (hearing impaired) when: on October 14, 2015, he was not provided with a sign language interpreter during an interview for employment. 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. 0120172702 2 The investigation into the complaint reflects that Complainant applied for the Agency position of City Carrier Assistant (CCA). Duties essential to the CCA position include lifting 70 pounds intermittingly, standing and sitting intermittingly for six hours, casing mail for two hours, and driving for six hours. Complainant was selected to interview for the CCA position on October 14, 2015. According to Complainant, before the scheduled interview, he advised the Postmaster, who was the selecting official for the position, that Complainant required the use of an American Sign Language (ASL) interpreter during the job interview. On the morning of the scheduled interview, the Postmaster emailed Complainant, advising him that an ASL interpreter was not available on that day and that his interview had to be rescheduled to the following day, October 15, 2015. Complainant responded to the Postmaster’s email that he was unavailable on October 15, 2015. The record indicates that at the Postmaster’s request, Complainant provided alternative dates he would be available to interview. Despite learning that an interpreter was not available, Complainant nevertheless arrived at the Agency facility on October 14, 2015 to interview for the CCA positon. The record indicates that although, Complainant was not interviewed, the Postmaster met with him and received Complainant’s resume. After meeting with Complainant and based on his punctuality, professional appearance, strong resume, and his determination that the hearing impairment would not affect his ability to perform the CCA duties, the Postmaster decided to bypass the interview process and recommend Complainant for the positon. The Postmaster’s recommendation was pending the results of a background check required of all applicants for employment. Although the Agency was able to provide an ASL interpreter for Complainant, based on the Postmaster’s determination to recommend Complainant for the CCA position as discussed above, there was no need to reschedule the interview for a time when an interpreter was available. Consequently, the Postmaster forwarded his recommendation to the Agency’s human resources department which ran background and driver’s license checks. Because of the background check, Complainant was determined to be ineligible for the City Carrier Assistant positon. The background check revealed that Complainant did not have a valid driver’s license. According to the report, Complainant’s driver’s license had been suspended within three years of his application for the CCA position at issue. Agency policy regarding quality standards for CCA positons indicates that revocation of a driver’s license within the past five years or suspension of a driver’s license within three years of applying for a CCA positon with the Postal Service, renders an applicant ineligible for employment. After an 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). 0120172702 3 Complainant requested a hearing but the AJ denied the hearing request as a sanction against Complainant for refusing to participate in the scheduled hearing.2 The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. This appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Reasonable Accommodation The Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A qualified individual with a disability is an “individual with a disability” who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. § 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at § 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at § 1630.2(n)(3). To establish that Complainant was denied a reasonable accommodation, he must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. 2 The record indicates that when Complainant arrived at the hearing location, he requested that the ASL interpreter change her sitting location. However, when the Administrative Judge denied his request, Complainant said nothing, left the room and refused to return to participate in the hearing. 0120172702 4 See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). A federal agency must “make reasonable accommodation for the known physical or mental limitations” of a qualified employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program. 29 C.F.R. § 1630.9(a). We assume, for purpose of analysis only, and without so finding, that Complainant is an individual with a disability. The record in this matter indicates that the Agency arranged for the services of an ASL interpreter for an interview with Complainant for the positon of City Carrier Assistant on October 15, 2015. Although Complainant was recommended for the CCA position without an interview, the record establishes that the Agency affirmatively met its obligation under the Rehabilitation Act to provide Complainant with a reasonable accommodation. In that regard, we find that Complainant has failed to demonstrate that the Agency failed to accommodate his disability and discriminated against him as alleged. Disparate Treatment - A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant has not specifically challenged the Agency’s failure to hire him for the CCA position as issue. Nevertheless, we assume arguendo that Complainant has established a prima facie case of discrimination. We further find that the Agency has articulated legitimate, nondiscriminatory reasons for not hiring Complainant. 0120172702 5 Complainant was not hired for the CCA positon at issue herein, because he did not pass the background check which revealed that he did not have a valid driver’s license. Moreover, we find that Complainant has failed to demonstrate that the Agency’s reasons for not hiring him as a City Carrier Assistant are pretext for discrimination. CONCLUSION The Agency’s final decision finding no discrimination is AFFIRMED for the reasons discussed above. 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. 0120172702 6 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 October 23, 2018 Date Copy with citationCopy as parenthetical citation