0120170756
10-11-2018
Shaun N.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shaun N.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120170756
Agency No. 4E570001516
DECISION
On December 2, 2016, 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 November 15, 2016, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the final agency decision (FAD) properly found that Complainant did not establish that he was discriminated against or subjected to harassment based on age, reprisal for prior EEO activity, and disability regarding 5 incidents which formed the basis of his hostile work environment claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier Q-01 at the Agency's Great Falls Post Office (CMR Station) facility in Great Falls, Montana. The Agency's FAD thoroughly discussed the facts in the record, and the instant decision incorporates them as stated. On April 25, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical) and age (60) and reprisal for prior protected EEO activity under Title VII as evidenced by 5 separate incidents to include: his supervisor encouraged other employees to bid on a route because he was bidding on it; his supervisor disclosed his private medical information; his work hours were changed; minutes before he was to begin his annual leave, he was informed that due to a schedule change he could not go on an annual leave; and he was required to provide medical documentation regarding a new assignment.
Complainant alleged that on January 5 and 9, 2016, his supervisor encouraged other employees to bid on a route because he was bidding on it. Complainant's supervisors, (S1 and S2) both acknowledged that they asked another employee to bid on the route in question. (Investigative file [IF], Affidavit [aff]B, p. 3; Aff C, p. 3). S1 admitted that he did encourage another employee to bid on the route, without animus, but based on his concerns about Complainant's medical restrictions. He explained he was hoping an employee with no restrictions would bid on the route. (IF, Af. B, p. 4).
Complainant alleged that in January 2016, his supervisor (S1) disclosed his private medical information. S1 denied that he disclosed Complainant's medical information. (IF, Aff. C, p. 6). Complainant acknowledged that he did not personally witness the alleged conversation between S1 and the said employee. (IF, Aff. A, p. 7). The record contains an unsworn statement by the employee, who reported that S1 informed her of Complainant's work restrictions. (IF, Aff A, p. 26).
Complainant alleged that on or around January 16, 2016, his work hours were changed by S2. Complainant stated he was not informed before the decision to change his work schedule was made. S2 testified that Complainant's light duty work hours were from 7:00 a.m. to 11:00 a.m. He acknowledged that a schedule change was posted whereby Complainant's new hours were from 11:00 a.m. to 3:00 p.m. (IF, Aff. D, pp. 3, 6-7). S1 indicated that placing Complainant on a later schedule than early morning would accommodate Complainant's medical restrictions.
S2 explained that management felt obligated to provide work for Complainant during different hours of the day. According to S2, management explained to Complainant that he would be given a later work schedule in order to provide work as mandated by "District OWCP." S2 indicated that Complainant's new schedule was to accommodate his medical restrictions that only allowed him to stand 30 minutes per day, which limited management's ability to give Complainant casing work during the early hours of the day. (IF, Aff. D, pp. 4, 6).
Complainant alleged that on January 22, 2016, 15 minutes before he was to begin his annual leave, he was informed by S2 that due to a schedule change he could not go on an annual leave. S2 acknowledged that Complainant requested annual leave. He recalled that Complainant's leave request was approved. He denied that he told Complainant that he could not go on annual leave. Rather, he stated that he simply instructed Complainant to submit a new leave request covering his time off under the new work schedule. According to S2, he assured Complainant that the new leave request would be granted. (IF, Aff. D, pp. 6-7). The records show that Complainant did, in fact, take annual leave during the dates at issue. (IF, Exhibit [exh] 11).
Complainant alleged that on January 22, 2016, he was required by S1 and the Postmaster Services to provide medical documentation regarding a new assignment. The records show that the Postmaster Services (S3) sent Complainant a letter directing him to provide medical documentation regarding his new assignment. (IF, Exh. 9). S3 explained that his request that Complainant provide medical documentation was job-related and based on applicable Agency handbooks and manuals. (IF, Aff. E, p. 16). He added that the request was consistent with business necessity; management had a legitimate need to know if Complainant would be able to perform the duties of the new assignment in the foreseeable future.
Complainant maintained that all of management's actions were in retaliation for his prior protected EEO activity.
The Agency, among other things, found that management's conduct was legitimate, nondiscriminatory, and without retaliatory intent. The Agency also noted that the evidence did not indicate that S1 was aware of Complainant's prior EEO activity. Therefore, he could not have been motivated by retaliation.
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. 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.
CONTENTIONS ON APPEAL
The parties did not provide statements on appeal.
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
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of age, disability and reprisal discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Here, Complainant alleged his supervisor encouraged other employees to bid on a route because he was bidding on it; his supervisor disclosed his private medical information; his work hours were changed; minutes before he was to begin his annual leave, he was informed that due to a schedule change he could not go on an annual leave; and he was required to provide medical documentation regarding a new assignment.
The Agency asserted that another employee was encouraged to bid on a route in which Complainant was interested because they were concerned about Complainant's medical restrictions. S1 had hoped another employee who had no restrictions would bid on the route.
Management denied that confidential medical information pertaining to Complainant was ever disclosed. As noted above, an employee indicated that S1 told her Complainant's restrictions; however, there is no evidence that confidential information about Complainant's disability or medical condition was disclosed. Management also indicated that Complainant took his annual leave despite a schedule change.
Furthermore, the Agency stated that Complainant was aware his schedule would change; and that the new schedule was to accommodate his medical restrictions.
Finally, management asserted that the request for Complainant's medical documentation was job-related and consistent with business necessity. Management had a legitimate need to know if Complainant would be able to perform the duties of the new assignment in the foreseeable future.
To the extent that encouraging another employee to bid on an assignment that Complainant desired can be considered an adverse act, we find no persuasive evidence that S1 and S2 discriminated against Complainant based on his age, disability or previous EEO activity. At the time, the record indicates that Complainant could not perform the duties of the route that he wanted due to his medical restrictions.
We are, however, concerned by S1's comment that he was "[h]oping an employee with no restrictions would bid on the route." (IF, Af. B, p. 4). S1's attitude could in future cases result in discriminatory conduct towards those employees with disabilities who need accommodations. We note in this regard, his later statement that, "[I] wanted a carrier that did not have restriction [sic] to bid the route." The Agency should monitor S1 in the future to see that he receives appropriate training to avoid potential violations of the Rehabilitation Act.
With respect to Complainant's remaining allegations, we find no persuasive evidence of pretext, or that the Agency improperly disclosed confidential medical information. Likewise, we find that the Agency's request of medical information from Complainant was job-related and consistent with business necessity.
Regarding Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final decision because the preponderance of the evidence in the 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. 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
_10/11/18_________________
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.
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