Orville D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

0120172516 (E.E.O.C. Dec. 18, 2018)

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

Orville D.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120172516

Agency No. 4J-604-0044-14

DECISION

On June 14, 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 14, 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 worked as a City Carrier Assistant for the Agency in
Roselle and Hoffman Estates, Illinois.

On February 20, 2014, Complainant filed a formal EEO complaint. Complainant claimed that
the Agency discriminated against him based on disability (chronic fatigue) when:

1. from August 3, 2013 and ongoing, his medical documentation was not accepted
and he was not permitted to work;

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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2. on December 9, 2013, he was issued a Letter of Warning for "Failure to Perform
the Duties and Responsibilities of [His] Position;" and,

3. on January 3, 2014, he was issued a Notice of Removal for "Failure to Perform
Duties in a Safe Manner."

The Agency accepted the complaint and conducted an investigation. The investigative record
reflects the following salient events relating to the subject claims.

Complainant provided a medical note to two supervisors of customer service at the Roselle
Branch (hereinafter referred to as “S1” and “S2”, respectively) dated July 30, 2013. The medical
note stated that Complainant was examined for fatigue and muscle pain, that he was undergoing
evaluation, and would be seen again on August 2, 2013. The physician recommended that
Complainant “rest until he is diagnosed properly”. The note did not provide further information.
Complainant asserted that management refused to accept his medical documentations, and would
not let him work.

Complainant provided a second medical note dated August 2, 2013. The note stated that, “[f]or
medical reasons (chronic fatigue, etc.) he should be limited to working up to 40 hours/5 days per
week.” 2 The note did not provide any further details. Complainant stated that because S1 and S2
refused his medical documentation, he was not permitted to work, removed from his bid, sent
home without pay, and told he had to provide additional medical documentation. Complainant
asserted that S1 and S2 informed him that if he returned to work with medical restrictions, he
would be terminated.

S1 and S2 were both aware of Complainant’s chronic fatigue diagnosis in August 2013.
However, both stated that the District Medical Unit requested further documentation
demonstrating an official medical diagnosis, prognosis, and rationale for the time restriction, as
well as any relevant laboratory reports. Both parties denied informing him that he could not work
with restrictions. Both denied refusing his medical documentation as well.

In or about late August 2013, Complainant alleged that he was forced to sign a light duty
statement. S1 denied that assertion. S2 testified that Complainant's medical documentation was
temporarily accepted, and he signed a light duty statement because his injury was not an on-the-
job injury. S1 further noted that as a light duty employee, he was required to bring updated
medical documentation every 30 days. However, Complainant failed to do so. S1 asserted that
despite being given this instruction several times, Complainant responded that he did not have to
submit this updated information.

On September 9, 2013, Complainant asserted that he received a letter stating that he was being
taken off his temporary Roselle Branch bid as there was no work for him.

2 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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S1 stated that as a city carrier assistant, Complainant was required to work a minimum of 8
hours, and extended to 10/12 hours if needed, 6 days a week. S1 stated that based on his medical
restrictions, Complainant was temporarily removed from the temporary Roselle Branch bid, but
he was still allowed to work.

On October 11, 2013, he provided documentation to the Officer in Charge, and a third supervisor
of customer service (hereinafter referred to as “S3”) at the Hoffman Estates Branch. Complainant
worked at the Hoffman Estates Branch until S1 called the Hoffman Estates Branch and insisted
that he obtain additional medical documentation. Complainant stated that shortly after S1
transferred to Hoffman Estates, and she again became his supervisor.

On December 9, 2013, Complainant was issued a Letter of Warning for "Failure to Perform the
Duties and Responsibilities of Your Position". Complainant stated that S1 and the Branch
Manager were responsible for the Letter of Warning. The Letter of Warning was issued because
Complainant did not timely deliver an express package.

On November 30, 2013, a disciplinary interview was held regarding the Letter of Warning.
Complainant disagreed, and contended that the express package was placed in his case without
notification that it was an “express” package. Moreover, he argued that the package did not have
any express stickers, and all the labeling was in Spanish. Complainant believed that his
disability was a factor in receiving the Letter of Warning because S1 was building a case for
termination. S1 stated that she issued the Letter of Warning because the facility just had a service
talk about the importance of delivering express parcels by the guaranteed time. The Branch
Manager was the reviewing and concurring official, and found the Letter of Warning of
appropriate.

On or about January 2, 2014, documentation was given to S1, and the Branch Manager. The
medical note dated January 2, 2014, stated that, “[f]or medical reasons (chronic fatigue, etc.)
[Complainant] should be limited to working up to 50 hours/5 days per week.” The note did not
provide any further details.

On January 3, 2014, Complainant was issued a Notice of Removal for "Failure to Perform Duties
in a Safe Manner". Complainant asserted that S1 and the Branch Manager issued him of the
Notice of Removal. The Notice of Removal informed Complainant that his Agency vehicle was
found inappropriately running, and with the door opened, while he making a delivery. During a
pre-disciplinary interview, Complainant responded “no response” when asked if the incident had
occurred as described. S1 considered progressive discipline in issuing the Notice of Removal.
The Branch Manager stated that Complainant’s medical condition had nothing to do with the
Notice of Removal.

Complainant believed that S1 intentionally “messed with his schedule, start times, and
attendance…” in order to harass him so that he would resign. Complainant asserted that when he
did not resign, management found ways to eventually terminate him.

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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). Complainant requested a hearing.

However, on January 14, 2015, the AJ entered an Order to Show Cause requiring Complainant to
explain why sanctions should not be imposed for his failure to follow the written orders of the
Administrative Judge. On January 20, 2015, Complainant responded. Complainant stated that he
was unemployed, and unable to retain counsel to navigate the EEO process. The AJ determined
that Complainant had failed to provide good cause, and remanded the complaint to the Agency
for a final decision.

The Agency issued the instant final decision pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.

The instant appeal followed. Complainant did not provide any new contentions on appeal.

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

Under the Commission's regulations, a federal agency may not discriminate against a qualified
individual on the basis of disability and is required to provide reasonable accommodations to the
known physical and mental limitations of an otherwise qualified individual with a disability
unless the Agency can show that reasonable accommodation would cause an undue hardship. See
29 C.F.R. § 1630.2(o), (p). To establish that she was denied a reasonable accommodation,
Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. §
1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m);
and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement
Guidance on Reasonable Accommodation). An individual with a disability is “qualified” if he or
she satisfies the requisite skill, experience, education, and other job-related requirements of the
employment position that the 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).
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“Essential functions” are the fundamental job duties of the employment position that the
individual holds or desires. Id. § 1630.2(n).

A request for a modification or change at work because of a medical condition is a request for
reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question
1. After receiving a request for reasonable accommodation, an agency “must make a reasonable
effort to determine the appropriate accommodation.” 29 C.F.R. Part 1630, App. § 1630.9. Thus,
“it may be necessary for the [agency] to initiate an Informal, interactive process with the
individual with a disability . . . [to] identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. §
1630.2(o)(3); see also 29 C.F.R. Part 1630, App. § 1630.9; Enforcement Guidance on
Reasonable Accommodation at Question 5.

Here, Complainant submitted a medical documentation in early August 2013 that stated that
Complainant was seen for fatigue and muscle pain, and that he was undergoing further
evaluation. The physician recommended that Complainant “rest until he is diagnosed properly”.
The note did not provide further information. A second medical note dated August 2, 2013,
provided that, “[f]or medical reasons (chronic fatigue, etc.) [Complainant] should be limited to
working up to 40 hours/5 days per week.” The note did not provide any further details. Both S1
and S2 stated that while they allowed Complainant to continue working under those temporary
restrictions, the District Medical Unit requested further documentation demonstrating an official
medical diagnosis, prognosis, and rationale for the time restriction, as well as any relevant lab
reports. Despite several requests, Complainant failed to produce the appropriate documentation
detailing the criteria that the District Medical Unit required.

With respect to Complainant’s denial of reasonable accommodation claim, we find that, despite
Complainant’s claim to the contrary, the Agency allowed Complainant to temporarily work his
preferred restricted hours while it awaited further documentation. Complainant provided various
medical notes from his physician. However, none of the notes provided the detailed information
required by the Medical Unit. As such, we find the Agency did not unlawfully fail to provide
him with reasonable accommodation.

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, she
must first establish a prima facie 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).
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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).

Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The record
demonstrates that Complainant was issued the December 9, 2013 Letter of Warning "Failure to
Perform the Duties and Responsibilities of Your Position" (claim 2). He was provided this action
based on failure to timely deliver a guaranteed, express parcel. Complainant was provided an
opportunity to contest the Letter of Warning, which he did. Complainant’s main argument was
that no one informed him that the package was express mail, and that it was not his fault that he
failed to timely deliver this parcel. The record supports a determination that, as a city carrier
assistant, it is part of Complainant’s responsibility to know and understand the important of
timely delivering parcels, and recognizing when parcels must be delivered. If the parcel was in
another language, it was Complainant’s duty to ensure he understand the meaning of such labels
to prevent unnecessary incidents from occurring.

Based on the record, we also find that the January 3, 2014, Notice of Removal for "Failure to
Perform Duties in a Safe Manner” was based on legitimate, non-discriminatory reasons. Here,
the Agency provided detailed information based on Complainant’s prior disciplinary actions.
Furthermore, the Agency provided information on how the Notice of Removal was based on
progressive discipline.

We find that Complainant failed to prove, by a preponderance of the evidence, that these
proffered reasons were pretext designed to mask the true discriminatory or retaliatory reasons for
the actions.

Hostile Work Environment

With regard to Complainant’s hostile work environment claim, to establish a claim of hostile
environment harassment, Complainant must show that: (1) he belongs to a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on his statutorily
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protected class; (4) the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected bases – in this case, his disability. Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself. Here, Complainant simply has provided no evidence to support
his claim that his treatment was the result of his disability.

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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.
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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).
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

December 18, 2018
Date