Virgilio M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Dec 12, 2018

0120172040 (E.E.O.C. Dec. 12, 2018)

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

Virgilio M.,1
Complainant,

v.

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

Appeal No. 0120172040

Agency No. 1K221006116

DECISION

On May 19, 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
April 27, 2017, final decision 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., 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler, 04/P
at the Agency’s Northern Virginia Processing & Distribution Center (P&DC) in Merrifield,
Virginia.

On October 31, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), disability (back), and age (59) when:

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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1. On September 20, 2016, Complainant was required to perform duties which he
believed were outside of his medical restrictions;
2. On September 21, 2016, Complainant was instructed to leave the building and
placed off the clock; and
3. On September 21, 23, and 24, 2016, Complainant has been spoken to in a loud
demeaning manner.

Some time prior to the events constituting this complaint, Complainant suffered a major on-the-
job injury that left him with permanent limitations. Complainant’s restrictions prevented him from
prolonged standing over two hours and from lifting over 10 pounds. Further, Complainant could
not push or pull. As a result, Complainant accepted a modified duty assignment on November 4,
2010, consistent with these restrictions. According to the modified duty assignment, Complainant
was to scan barcodes on incoming/outbound trucks with a hand scanner for up to eight hours and
prep mail-transported equipment for up to eight hours. This assignment required lifting 10 pounds
intermittently for up to eight hours a day, standing/simple grasping for up to four hours a day, and
walking for up to two hours a day.

During the investigation, Complainant submitted a copy of medical documentation dated June 7,
2016, stating that he was seen by a doctor on June 7, 2016 and that he could return to work on June
8, 2016. The documentation, however, stated that his restrictions included no prolonged standing,
rest when necessary, and no lifting more than 10 pounds. The medical documentation did not
include any information about Complainant’s condition and did not indicate how long these
restrictions were expected to last. Furthermore, it is not clear in the record if or to whom
Complainant may have submitted this documentation.

As to claim (1), Complainant claimed that his modified job assignment was taken from him and
he was given duties that violated his restrictions. Complainant alleged that he was given a
modified assignment cleaning up trash and discarding mail trays. The record does not contain any
information related to this alleged new modified job assignment. The Manager of Distribution
Operations (MDO) averred that Complainant’s modified duty assignment never changed and
denied that Complainant performed duties outside of his restrictions. MDO stated that
Complainant prepped mail-transported equipment and scanned barcodes with the hand scanner in
accordance with his restrictions.

With respect to claim (2), Complainant claimed that as soon as he took his break on September 21,
2016, MDO paged him to return to work immediately. Complainant told MDO that he was on
break due to his medical restrictions. MDO asked Complainant what these restrictions were, and
Complainant refused to tell him. MDO responded that if Complainant was not going to work, he
should go off the clock and go home. When Complainant refused to work, MDO had Complainant
clock out and leave. Complainant identified his co-worker (CW1) as an individual who would
corroborate his claims.

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MDO stated that Complainant took a break for almost two hours on September 21, 2016. When
MDO questioned Complainant about it, Complainant said he was not going to work and he was
not going to provide his limited duty limitations to MDO. CW1 corroborated that Complainant
was away from his work area for an extended period and that Complainant was confrontational
and disrespectful when MDO approached him. As Complainant refused to go back to work or
provide information as to why he could not work, MDO placed Complainant off the clock.

As for claim (3), Complainant claimed that on several occasions MDO spoke to him in a loud,
demeaning manner. Complainant alleged that MDO would ask him where he had been, and
Complainant would respond that he was on break sitting down on the other side of the building.
Complainant alleged that he responded by asking MDO to lower his voice. MDO denied that he
spoke to Complainant in a loud and demeaning manner. Rather, MDO stated that Complainant
was speaking loudly and shouting at him.

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). 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. Specifically, the Agency found that
Complainant was unable to rebut management’s articulated legitimate, nondiscriminatory reasons
for its actions. Further, Complainant did not show a hostile work environment because he did not
demonstrate that he was subjected to unwelcome verbal or physical conduct or that it was
sufficiently severe or pervasive. As a result, the Agency found that Complainant had not been
subjected to discrimination or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the record demonstrates he was subjected to discrimination as
he was forced to work outside his medical restrictions. Complainant requests that the case be
remanded for a hearing before an AJ.

ANALYSIS AND FINDINGS

As an initial matter, on appeal, Complainant asserted that he should be provided the opportunity
to present his complaint before an AJ. In its final decision, the Agency avers that Complainant
received a copy of the investigative report and notification of his right to request a hearing before
an AJ or an immediate final decision on February 7, 2017. Because Complainant did not exercise
his right to request a hearing, the Agency issued its final decision. On appeal, Complainant
presents no evidence or argument that he is entitled to a hearing before an EEOC AJ pursuant to
29 C.F.R. § 1614.108(f). Therefore, we find that Complainant's current request for a hearing on
appeal is untimely. As such, we shall review the Agency's final decision based on the record before
the Commission.

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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 Reasonable Accommodation

To the extent that Complainant alleges that he was denied 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 that Complainant 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 a reasonable accommodation. The Commission will assume without deciding
(for the purposes of this decision) that Complainant is an individual with a disability.

Here, Complainant claimed that he was required to perform duties outside of his restrictions on
September 20, 2016. More specifically, Complainant alleged that he was assigned to clean up
trash and discarded mail trays which were not duties included in his modified job assignment.
Complainant had been working under a modified job assignment given to him in November 2010,
which included scanning barcodes on incoming/outbound trucks and prepping mail-transported
equipment. Management officials denied assigning Complainant duties outside of his restrictions
or that his modified job assignment was taken away. Aside from Complainant’s bare assertions,
there is no evidence that Complainant was given a new modified job assignment or was instructed
to perform duties outside of his restrictions.

In addition, during the investigation, Complainant submitted several medical documents including
a June 2016 doctor’s note that provided the following restrictions: no prolonged standing, rest
when necessary, and no lifting more than 10 pounds. There is no indication that Complainant
provided this documentation to any Agency official. Nonetheless, on September 21, 2016, the
record reveals that MDO summoned Complainant over the loudspeaker and questioned him about
why he was away from his work area for an extended period. The record further indicates that
Complainant loudly and angrily refused to discuss with MDO any information about possible
updates to his condition or restrictions. 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.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC No. 915.002, Question 6 (Oct. 17, 2002).
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Here, the record shows that Complainant refused when asked to provide the Agency with updated
medical documentation in support of his claim that his medical condition prevented him from
performing his duties. Therefore, the Commission finds that Complainant has not established that
the Agency failed to provide him with a reasonable accommodation.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). 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. Corp. 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, 411 U.S. at
804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159
(June 28. 1990): Peterson v. Dep’t. of Health and Human Servs., EEOC Request No. 05900467
(June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31. 1990).

In the instant case, the Agency has articulated legitimate, nondiscriminatory reasons for its actions.
With respect to claim (1), as discussed above, MDO asserted that Complainant was never given
duties outside of his restrictions. MDO affirmed that Complainant’s duties included prepping
mail-transported equipment, scanning barcodes on incoming/outbound trucks, and scanning with
a hand scanner. MDO stressed that Complainant’s assignment was not changed. The record
contains only the modified duty assignment Complainant accepted in 2010, and Complainant does
not provide further evidence that he was worked beyond his duties. Moreover, regarding claims
(2) and (3), MDO explained that Complainant had taken an extended break and refused to go back
to work or provide information in support of his claimed medical condition which prevented him
from returning to work. Complainant claimed that he had only just taken his break, and that CW1
was a supporting witness. However, CW1 corroborated MDS’s version of the event stating that
Complainant was out of his work area for about two and a half hours and angrily yelled at MDO
when asked to return to work.

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Complainant has presented no evidence demonstrating that management’s reasons for its actions
were pretextual. Thus, Complainant has not shown by a preponderance of the evidence that he
was discriminated against.

Hostile Work Environment

To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily
protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on the protected class; (4) the
harassment 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 to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement
Guidance on Harris). An agency is liable for unlawful harassment by a co-worker if it knew or
should have known of the alleged harassment, unless it can show that it took immediate and
appropriate corrective action. 29 C.F.R. § 1604.11(d).

In short, 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 a protected basis. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.

In the instant case, the Commission finds that Complainant has not shown that he was subjected
to conduct sufficiently severe or pervasive to create a hostile work environment. Even assuming
that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment,
Complainant failed to demonstrate that the alleged incidents were based on his protected classes.
The record reflects that the alleged incidents were more likely the result of routine supervision,
managerial discipline, and general workplace disputes and tribulations. Thus, after a review of the
record in its entirety, the Commission cannot find that Complainant was subjected to a hostile
work environment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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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

December 12, 2018
Date