Shelton D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jul 11, 2018

0120162509 (E.E.O.C. Jul. 11, 2018)

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

Shelton D.,1
Complainant,

v.

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

Appeal No. 0120162509

Agency No. 4E-800-0009-16

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the June 17, 2016 final agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01,
at the Agency’s Main Post Office in Englewood, Colorado. In June 2015, Complainant was
diagnosed with the conditions of severe depression, bipolar disorder, and post-traumatic stress
disorder (PTSD). Complainant was incapacitated from June 18, 2015 to July 20, 2015.
Complainant submitted medical documentation clearing him to return to work at full duty with
no restrictions. The Postmaster sent Complainant a letter which instructed him to return to work
on July 27, 2015.

On August 10, 2015, Complainant claimed that he submitted a letter to the Postmaster stating
that he had recently been diagnosed with bipolar disorder and requesting to change from the

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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Carrier craft to the Clerk craft. Complainant further stated that the medication he used to treat
his condition caused him to experience heat exhaustion. Further, Complainant asserted that a co-
worker made him feel unsafe and that he wished to transfer to a vacant position at the
Greenwood Village facility. The Postmaster forwarded the request to the District Reasonable
Accommodation Committee (DRAC). Complainant was provided two to four hours work inside
while his accommodation request was considered by the DRAC.

On August 12, 2015, the DRAC sent Complainant a letter requesting medical documentation in
support of his request for reasonable accommodation. When Complainant did not respond, the
DRAC sent Complainant a second letter on September 3, 2015, requesting supporting medical
documentation again. On September 24, 2015, after Complainant again failed to respond, the
DRAC sent Complainant a third and final letter requesting medical documentation in support of
his reasonable accommodation request. The letter advised Complainant that the DRAC would be
unable to proceed with consideration of his request without this information. Complainant failed
to submit the requested documentation, and the DRAC took no action on his request.

On September 11, 2015, the Postmaster and Complainant’s supervisor (S1) issued Complainant a
Notice of Removal for failure to be regular in attendance. The notice cited several instances of
unscheduled absences totaling over 113 hours between May and August 2015. Complainant was
given two investigative interviews regarding his attendance. During those interviews,
Complainant blamed the absences on his and his child’s illnesses. Complainant had previously
been disciplined for his failure to be regular in attendance, including a 14-day suspension issued
on October 10, 2014, which advised Complainant that it was his final warning before removal.
As a result, the Postmaster and S1 issued Complainant the Notice of Removal. Complainant
filed a grievance regarding the removal. On October 9, 2015, the Dispute Resolution Team
determined that management had just cause in issuing the Notice of Removal, and Complainant
was given until October 21, 2015 to voluntarily resign or the removal would stand. Complainant
voluntarily resigned effective October 20, 2015.

On January 28, 2016, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of disability when:

1. On or around August 12, 2015. his request for reasonable accommodation was
denied; and

2. On or around September 12, 2015, he was issued a Notice of Removal for Failure
to be Regular in Attendance.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant’s
request the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

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In the FAD, the Agency determined that management had not denied Complainant reasonable
accommodation. The Agency found that the record showed that Complainant failed to provide
documentation to the DRAC as requested to assist in determining what reasonable
accommodation he needed to enable him to perform the essential functions of his position.
Further, management provided Complainant temporary light duty assignments in accordance
with his restrictions. Accordingly, the Agency found that Complainant failed to show that he
was denied reasonable accommodation.

Next, the Agency determined that management had articulated legitimate, nondiscriminatory
reasons for issuing Complainant the Notice of Removal. Specifically, S1 affirmed that he issued
the Notice of Removal because Complainant had failed to be regular in attendance. S1 noted
that Complainant had previously received disciplinary action regarding his attendance, and the
next progressive disciplinary step was removal. The Postmaster stated that he concurred in
Complainant’s removal based on the reasons cited by S1.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination as alleged. Complainant filed the instant appeal without submitting any
contentions or arguments in support.

ANALYSIS AND FINDINGS

Denial of Reasonable Accommodation

The Commission notes that an Agency is required to make reasonable accommodation to the
known physical and mental limitations of an otherwise qualified individual with a disability
unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R.
§ 1630.9. To establish a denial of reasonable accommodation, Complainant must show that: (1)
he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to
provide a reasonable accommodation. The Commission will assume without deciding (for the
purposes of this decision) that Complainant is an individual with a disability.

Upon review, the Commission finds that the Agency did not deny Complainant a reasonable
accommodation. The record reveals that Complainant submitted a letter to the Postmaster on
August 10, 2015, informing him that he had been diagnosed with bipolar disorder and requesting
a change in crafts as a reasonable accommodation. ROI, at 126. Complainant asserted in the
letter that his medication made him susceptible to experiencing heat exhaustion and heat stroke.
Id. The Postmaster forwarded the request immediately to the DRAC. Id. at 127. While the
matter was pending before the DRAC, S1 provided Complainant with light duty work consistent
with his restrictions as it was available. Id. at 93. On August 12, 2015, the DRAC sent
Complainant a letter requesting medical documentation in support of his request for reasonable
accommodation. Id. at 128. Complainant failed to submit the requested documentation. The
DRAC sent additional letters to Complainant requesting the medical documentation, including a
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letter on September 24, 2015 advising Complainant that if he did not respond, the DRAC would
assume that he did not wish further consideration for accommodation. Id. at 130-132.
Complainant stated that he provided the DRAC’s documentation to his doctor, but he was
unaware as to whether his doctor submitted anything to the DRAC. Id. at 86. The DRAC
Chairman confirmed that the committee did not receive any additional documentation in support
of Complainant’s request for reasonable accommodation. Id. at 109.

The Commission finds that the record evidence reveals that Complainant was not denied
reasonable accommodation in violation of the Rehabilitation Act. After receiving Complainant’s
request for reasonable accommodation, the DRAC requested medical documentation in support.
Complainant’s supervisor provided Complainant light duty work while the matter was pending
before the DRAC. There is no evidence in the record that Complainant submitted the requested
medical documentation in support of his request for reasonable accommodation. Under the
Commission’s guidelines, an agency may request additional information when presented with a
request for reasonable accommodation in order to evaluate a complainant’s proposed
accommodation in comparison to his current medical needs to determine what accommodation
would best serve the needs of the agency and complainant. EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC No. 915.002, Question 6 (Oct. 17, 2002). Moreover, when an individual’s disability or
need for reasonable accommodation is not obvious, and he fails to provide reasonable
documentation requested by the employer, the employer will not be held liable for failure to
provide the requested accommodation. Id. Here, the record shows that Complainant failed to
provide the Agency sufficient medical documentation to assist in addressing his condition.
Therefore, the Commission finds that Complainant has not established that the Agency failed to
provide him with a reasonable accommodation.

Disparate Treatment

In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies
that its decisions were motivated by Complainant’s disability and there is no direct evidence of
discrimination, the Commission applies the burden-shifting method of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68 (2d Cir. 1999);
Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999). Under this analysis, in order to
establish a prima facie case, Complainant must demonstrate that: (1) he is an “individual with a
disability”; (2) he is “qualified” for the position held or desired; (3) he was subjected to an
adverse employment action; and (4) the circumstances surrounding the adverse action give rise
to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).

The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for the adverse employment action. If the Agency is successful, the burden reverts back
to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons
were a pretext for discrimination. At all times, Complainant retains the burden of persuasion,
and it is his obligation to show by a preponderance of the evidence that the Agency acted on the
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basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Serv. Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the Commission finds that Complainant failed to present evidence to rebut the
Agency’s legitimate, nondiscriminatory reasons for its actions. More specifically, S1 affirmed
that he issued Complainant the Notice of Removal for his failure to be regular in attendance.
ROI, at 95. The record reveals that Complainant had accumulated 113.64 hours of unscheduled
absences between May and August 2015. Id. at 140. Complainant failed to provide an
acceptable explanation for his absences during two investigatory interviews. Id. at 140-41.
Additionally, Complainant had previously been disciplined for similar attendance issues and was
warned that the next step was removal. Id. at 95, 164-66. The Postmaster confirmed that he
concurred in issuing the Notice of Removal. Id. at 103. As a result, Complainant was issued the
Notice of Removal for failure to be regular in attendance. Complainant subsequently voluntarily
resigned after unsuccessfully filing a grievance. Id. at 111, 301.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

As Complainant did not request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The Commission
finds no persuasive evidence that Complainant’s disability was a factor in any of the Agency’s
actions. At all times, the ultimate burden remains with Complainant to demonstrate by a
preponderance of the evidence that the Agency’s reasons were not the real reasons and that the
Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden.
As a result, the Commission finds that Complainant has not established that he was subjected to
discrimination as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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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.

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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

July 11, 2018
Date