0120161653
05-22-2018
Trevor H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Trevor H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161653
Agency No. 4G752000816
DECISION
On April 21, 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 March 28, 2016, final decision (FAD) 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Agency's Beverly Hills Station facility in Dallas, Texas.
On December 2, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), disability (back injury), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On September 21, 2015, Complainant was injured at work and denied medical attention; and
2. On September 28, 2015, Complainant was denied a reasonable accommodation when his "light duty" request was denied.
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). In accordance with Complainant's request, 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. Specifically, the Agency found that Complainant failed to establish a prima facie case of disability discrimination because he was not an individual with a disability. The Agency further found that, assuming Complainant was an individual with a disability, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that such reasons were a pretext for discrimination.
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").
Denial of Medical Attention
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination.
We next find that the Agency articulated a legitimate, nondiscriminatory reason for its action when Complainant's then-supervisor (S: Hispanic, no claimed disability) averred that Complainant called in before coming to work on the day in question and told her that he had injured his ankle and asking:
[I]f there was any way we could swap out some walking for some drive out delivery. I told him I was not the opening supervisor that day but that would call [the opening supervisor] and let him know. [Complainant] told me that he was going to come into work and try to work. I said okay. I was on the carrier floor when he told me that he could not move. I assumed it was because of his fall from that weekend that he called me about that morning. . . . He did not report his injuries to me. He only called me that morning to tell me about his ankle. . . . I asked [Complainant] if he needed me to drive him home. At that time he told me that his wife was on her way to come pick him up.
The Station Manager (SM: African American, no claimed disability) similarly averred that Complainant did not seek medical attention. The Agency having articulated a legitimate, nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a pretext for discrimination or reprisal. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden.
Complainant averred that "nobody told me I could see a doctor, so I had my wife drive me to urgent care where I had to pay cash since it was a work injury. I couldn't be seen until around 1400 hours that day. . . I should have been given paperwork to go to the ER ASAP since it was a work injury." Complainant further averred that another co-worker (CW: Hispanic, back injury) outside of his protected bases, "hurt his back a few months earlier and within the hour paramedics were at the Station checking on him." We note, however that both S and SM averred that when CW incurred his back injury he collapsed and was screaming, and both denied calling paramedics for CW. Since neither S nor SM called paramedics for CW and Complainant does not know who did, he cannot show that S or SM treated him differently by failing to call paramedics.
Denial of Reasonable Accommodation
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 Enforcement Guidance on Reasonable Accommodation. An individual with a disability is "qualified" if he 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. 29 C.F.R. � 1630.2(n).
A request for a modification or change at work because of a medical condition, such as a request for light duty, is a request for reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation at Q. 1. After receiving a request for reasonable accommodation, an agency "must make a reasonable effort to determine the appropriate accommodation." 29 C.F.R. pt. 1614. 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. pt. 1630 app. � 1630.9: Enforcement Guidance on Reasonable Accommodation at Q. 5.
Following a review of the record we find that Complainant has failed to establish that he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g). Under that regulation, a disability means: A physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment, meaning that the individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both "transitory and minor." Id. Complainant has not shown he incurred a physical impairment that substantially limited one or more major life activities. Complainant maintains he hurt his back at work while lifting a tray of mail and that he incurred a pulled muscle in his back. Complainant provided medical evidence showing he was diagnosed with lumbosacral strain and muscle spasm but provided no evidence showing how his condition substantially limits one or more major life activities. He averred that his doctor told him the condition would last "possibly 1-2 weeks after coming back from a week off." Complainant did not describe any duties he could not perform, averring that, at the time of the investigation, there were none, and that he was not under any medical restrictions. When asked what limitations he faced in his personal life as a result of the condition, he replied "have to be careful bending over."
On appeal, Complainant argues that SM denied him the appropriate forms for filing a Worker's Compensation claim and states that "All I was trying to accomplish in the beginning was to be reimbursed for the medical expense I endured as a result of an on the job injury." We note, however, that he has not addressed the FAD's finding that he is not an individual with a disability. Based on the above we find that Complainant has not shown he is substantially limited in one or more major life activities, and hence he has not shown he is an individual with a disability. Because Complainant has not shown he is an individual with a disability, he cannot establish that he was denied a reasonable accommodation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of showing discrimination or reprisal occurred and we AFFIRM the FAD.
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
May 22, 2018
__________________
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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