Terrence F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 20180120172708 (E.E.O.C. Nov. 30, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrence F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120172708 Agency No. 4B-006-0049-16 DECISION On July 30, 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 28, 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 Supervisor of Customer Service at the Agency’s Bayamon Branch in Bayamon, Puerto Rico. On December 16, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the Agency subjected him to a hostile work environment and discriminated against him based on disability when, since August 12, 2016, and continuing, he was subjected to harassing comments, hostile treatment, and his request for reasonable accommodation has not been granted. The Agency accepted the complaint and the investigative record reflects the following pertinent matters relating to the subject claim. 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. 0120172708 2 Complainant indicated that he has had chronic lumbar back pain, hip pain, and sacroiliac joint dysfunction since 2013. Complainant asserts his condition is permanent, with occasional flare ups occurring 5 to 6 times a month. His condition worsens when he stands or walks for prolonged times without rest. Complainant stated that he needs to be able to sit after two hours of standing or walking, and is not able to lift or move heavy objects. He asserted that he is therefore unable to perform the required functions/duties of his position without a reasonable accommodation. 2 On August 13, 2016, Complainant submitted a request for reasonable accommodation to the Manager (hereinafter referred to as “M1”). In his request, he stated that Bayamon Branch recently eliminated the supervisors’ office, and replaced two supervisor desks with standing workstations. Complainant noted that supervisors were now required to work standing up. Complainant stated that due to his medical disabilities, he needed to be able to switch from standing to sitting during work hours. He explained that prolonged standing caused extreme and disabling lumbar pain. Upon submitting the request, Complainant alleged that M1 commented in a loud voice that there was no work for him at the Bayamon Branch, and to start looking for work elsewhere. Complainant asserted that the Safety Specialist and the Manager of Customer Service (hereinafter referred to as “M2”) witnessed the interaction. Complainant asserted that the comments left him feeling hopeless, undervalued, and discriminated. Complainant noted that she reported M1’s comments to the Manager of Customer Service Operations (hereinafter referred to as “M3”), who did nothing. M1 denied ever making such hostile statements. M2 stated that M1’s behavior toward Complainant seemed to show that he was somewhat surprised, but accepted the documents and told Complainant that he was going to submit them to human resources. The Safety Specialist stated that he did not recall this alleged interaction. M3 stated that he did not receive any complaints of harassment or hostile work environment from Complainant. On August 17, 2016, Complainant said he attempted to provide the medical documents to M1, but M1 refused to accept them stating that Complainant needed to accept changes implemented by upper management. M1 also allegedly stated that Complainant’s request for an accommodation was a weakness, noting that he was management and not a bargaining level employee. M1 stated, however, that he was not aware of Complainant having any prior work restrictions or limitations that would have affected his ability to perform the essential functions of his position prior to receiving the medical documentation. M1 stated that Complainant was responsible for supervising a group of employees, and was expected to occasionally walk the floor. 2 We presume, for purposes of analysis only, and without so finding, that Complainant is an individual with a disability. 0120172708 3 M1 informed Complainant that he could use any of the four desks available at Bayamon Branch Station to sit when needed. M1 stated that the branch had seven desks previously, and that he had only converted a few into standing workstations. Complainant stated that while he was provided with this alternative accommodation, he had informed M1 that this arrangement would be insufficient. Complainant argued that he needed to be at a “consistent and central” location where he could observe the carriers, and be accessible to the retail customers. M1 stated that he also submitted Complainant’s request to the Manager of Labor Relations (hereinafter referred to as “M4”) for referral to the District Reasonable Accommodation Committee (“DRAC”). At the time of the investigation, Complainant provided a signed affidavit, dated March 1, 2017, which noted he had not directly contacted the DRAC to discuss his accommodation requests. However, in April 2017, M4 sent him an invitation to discuss his reasonable accommodation requests with the DRAC. Complainant responded, requesting a different date due to a scheduling conflict. In his appeal, Complainant noted that he had yet to hear back from M4 or the DRAC. After 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). 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), finding no discrimination. The instant appeal followed. Complainant asserts that the investigation demonstrated that Agency management did not follow its own policies regarding the reasonable accommodation process. Complainant argues that because of the Agency’s discriminatory practices, his conditions were exacerbated to the point that he required two separate surgeries. Complainant argues that the Agency’s alternative accommodation was to allow him to sit whenever he needed, which Complainant deemed was an insufficient accommodation. Complainant also asserted that the Agency failed to consider his request to work at other Agency stations within the San Juan area. Finally, he notes that his case was not timely referred to the DRAC. Complainant noted that it took nine months to have a meeting scheduled. Additionally, due to a conflict in schedule, he could not make the initial meeting, and despite an attempt to reschedule, Complainant had yet to hear from the DRAC at the time of his appeal. ANALYSIS AND FINDINGS 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). 0120172708 4 To establish that he was denied a 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 him 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). “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 reasonable accommodation request on August 12, 2016 to M1. The request stated that due to his disabilities, he needed to be able to switch from standing to sitting throughout the work day. M1 accepted the request and submitted it to the District Reasonable Accommodation Committee (“DRAC”). While the request was being reviewed through DRAC, M1 informed Complainant that he could continue to use any of the four available desks when needed. Complainant found this accommodation insufficient. Complainant noted that the desks were often unavailable when he needed them, and he informed M1 that he desired to be in a central, dedicated, location. He explained that a dedicated, central location would allow him to sit and stand as needed, and would allow him to observe the carriers, and be available to retail customers. With respect to Complainant’s denial of reasonable accommodation claim, we find that, despite Complainant’s claim to the contrary, the Agency provided a sufficient alternative to his request. We note that, although individuals protected under the Rehabilitation Act are entitled to a reasonable accommodation, they are not necessarily entitled to their accommodation of choice. See Castaneda v. United States Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). Here, there is no medically supported reason as to why he could choose to sit at any of the four available desks when needed. Complainant argued that the desks were often unavailable, and alluded to the need to have a personal, designated desk. 0120172708 5 However, Complainant’s assertion about desk unavailability was speculative and he identified no specific incident where his attempt to sit at a desk was thwarted by full occupancy of the desks by other employees. Regarding the delay in contact, the record does demonstrate an lengthy eight-month waiting period between his August 2016 submission to M1, to when the DRAC contacted him in April 2017. However, during this time, Complainant was not without an accommodation. The record demonstrated, and he acknowledged, that he received an alternative accommodation to his request. Specifically, the ability to use any of the available desks, at any time he needed to. We stress again that an individual is not entitled to a reasonable accommodation of choice, so long as the individual receives a reasonable accommodation. Complainant also argued that management failed to consider his request for a reassignment to any other branch in the San Juan area. In general, reassignment is the reasonable accommodation of last resort and should be considered only when: (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. Part 1630, App. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, “Reassignment.” Here, there was no demonstrated need for a reassignment as the alternative accommodation of allowing Complainant to sit and stand whenever needed was in place. Given the specific facts in the present case, we find that Complainant failed to establish that he was denied a reasonable accommodation. Finally, Complainant also argued that the denial of his desired reasonable accommodation exacerbated his conditions, and forced him to undergo two separate surgeries. Despite his assertions, Complainant did not provide any medical documentation whatsoever from his physician stating that any subsequent surgeries were the result, either directly or indirectly, of not having a designated, centralized space where he could stand and sit, as needed. 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 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. 0120172708 6 Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In the instant matter, Complainant alleged that M1 made derogatory and hostile comments to him when he submitted his request to M1 on August 12, 2016. Complainant listed two witnesses to the situation. However, M2 stated that while M1 seemed somewhat surprised by the interaction, he accepted the paperwork and informed Complainant that he would pass it on. The Safety Specialist testified to having no recollection of such event. Despite Complainant’s assertions, there is simply no documentation that M1 reacted in any negative manner, or that he treated Complainant differently following his request. Here, Complainant simply has provided no evidence to support his claim that he was subjected to a hostile work environment as the result of his disability or request for a reasonable accommodation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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. 0120172708 7 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 November 30, 2018 Date Copy with citationCopy as parenthetical citation