Neal O.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jan 13, 2016

0120142906 (E.E.O.C. Jan. 13, 2016)

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

Neal O.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120142906

Hearing No. 420-2014-00101X

Agency No. 1G-391-0008-13

DECISION

On August 14, 2014, Complainant filed an appeal from the Agency’s July 18, 2014 final order
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 deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Mail Handler at the Processing and Distribution Center in Jackson,
Mississippi. On September 6, 2013, he filed an EEO complaint in which he alleged that the
Manager of Distribution Operations (MDO1) discriminated against him on the bases of race
(African-American), sex (male), disability (residual effects of back injury), and age (54) by
reassigning him to another tour and forcing him to work outside of his medical restrictions
between May 8 and June 16, 2013. He further alleged that a second Manager of Distribution
Operations (MDO2) had denied his repeated requests for overtime since August 20, 2013.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Complainant sustained an on-the-job injury for which he drew workers’ compensation. On
February 10, 2013, Complainant was approved to return to work with the following medical
restrictions: (1) lifting no more than 20 pounds more than 4-6 hours per day; (2) continuous
standing from 1-2 hours, and 8 hours intermittent standing; (3) 1 hour of continuous walking
and 6-8 hours of intermittent walking; (4) no bending; (5) 2-4 hours of intermittent stooping;
(6) 4-6 hours of twisting; (7) 4 hours of intermittent pulling/pushing; (8) 4 hours of reaching
above shoulder intermittently; (9) 4 hours of driving a vehicle continuously and 1 hour o
driving intermittently; and (10) 4-6 hours of operating machinery. The form from the Office
of Workers’ Compensation Programs did not indicate whether these restrictions were
permanent. IR 71, 83, 111-12.

Upon Complainant’s return to work, MDO1 offered him a limited duty assignment on another
tour. His responsibilities on that tour included operating a tow-motor and repairing torn mail.
Complainant requested that in lieu of operating the tow-motor, he be allowed to deliver express
mail. According to MDO1, there was not enough work in his bid assignment that fell within
his medical restrictions. At a meeting with the District Reasonable Accommodation
Committee, Complainant repeated his request, but the Committee concluded that the tow-motor
functions were not outside of his limitations. Although Complainant was on the overtime
desired list for the quarter that ended on June 30, 2013, he name did not appear on the list for
the following quarter. MDO2 averred that Complainant was not given overtime work because
the terms of his limited duty assignment did not authorize him to work more than eight hours
per day. IR 84-85, 96, 104-05, 113-18, 147-51.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but over his objection, the AJ assigned to the case granted the Agency’s
June 18, 2014 motion for summary judgment and issued a decision on July 9, 2014, without
holding a hearing. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s personnel decisions involving job
assignments and overtime unless there is evidence of a discriminatory motivation on the part of
the officials responsible for making those decisions. See Texas Department of Community.
Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on his
disparate treatment claim in connection with being assigned duties outside of his medical
restrictions by MDO1 and being denied overtime opportunities by MDO2, Complainant would
have to present enough evidence to raise a genuine issue of material fact as to whether MDO1
or MDO2 were motivated by unlawful considerations of his race, sex, age, disability, or
previous EEO activity when they made the decisions that led to the filing of this complaint.
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See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993).

In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
fact regarding the motives of MDO1 and MDO2 by submitting sworn statements or documents
tending to show that the reasons they articulated for their actions were pretextual. St. Mary’s
Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253.
Indicators of pretext include discriminatory statements or past personal treatment attributable to
MDO1 or MDO2, comparative or statistical data revealing differences in treatment across
racial, gender, age or disability lines, unequal application of Agency policy, deviations from
standard procedures without explanation or justification, or inadequately explained
inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC
Appeal No. 0120141697 (November 12, 2015).

When asked by the investigator why he believed that MDO1 and MDO2 were motivated by
considerations of his race, sex, age, and disability, Complainant responded that because he was
a long-time African-American male employee over fifty who had initiated the EEO process,
management wanted to force him to leave by making his job more difficult. IR 75, 78.
Complainant’s entire claim appears to rest on his notion that the acts complained of are
sufficient in and of themselves to establish motive. This is simply not true. The statutes the
Commission enforces cannot prevent an employer from making assignment or overtime
decisions that its employees disagree with unless those decisions are rooted in a motivation
expressly proscribed by those statutes. And on this crucial issue, Complainant did not provide
evidence of any of the indicators of pretext described above. He has not submitted any sworn
statements from other witnesses or documents that contradict the explanations provided by
MDO1 for assigning him certain job duties and MDO2 for not making overtime opportunities
available to him, or which call the veracity of these officials into question.

As to the accommodation issue raised by Complainant, agencies are required to
reasonably accommodate the known limitations of a qualified individual with a
disability, unless it can show that doing so would cause an undue hardship. See 29 C.F.R. §§
1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice
No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture, EEOC Appeal No.
0120120400 (December 3, 2015). While Complainant is entitled to an effective reasonable
accommodation, he is not entitled to the accommodation of his choice. Lynette B. v.
Department of Justice – Bureau of Alcohol, Tobacco, Firearms & Explosives, EEOC Appeal
No. 0720140010 (December 3, 2015). Complainant has not presented any documents or
witness testimony tending to support his assertion that operating the tow-motor would have
been outside of his medical restrictions. We therefore agree with the AJ that the Agency
fulfilled its obligation to reasonably accommodate Complainant by offering him the limited
duty assignment on a different tour.
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On the basis of the foregoing, we find, as did the AJ, that no genuine issue of material fact
exists with respect to MDO1’s motivation in assigning him certain job functions or MDO2’s
motivation in not giving him the overtime assignments he wanted.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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.
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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, Director
Office of Federal Operations

January 13, 2016
Date