Wade H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Nov 17, 2016

0120142186 (E.E.O.C. Nov. 17, 2016)

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

Wade H.,1
Complainant,

v.

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

Appeal No. 0120142186

Agency No. 4C-190-0087-13

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated May 9, 2014,
finding no discrimination with regard to his 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. For the following reasons, we AFFIRM the Agency’s final decision finding no
discrimination.

BACKGROUND

In his complaint, filed on August 20, 2013, Complainant alleged discrimination based on race
(African-American), disability (shoulder and knee), and in reprisal for prior EEO activity
when:

He was not allowed to return to duty until after he met with the District Reasonable
Accommodation Committee (DRAC) on April 12, 2013; subsequently, he was returned
to duty without back pay effective May 3, 2013.2

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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After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to
rebut.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period, Complainant was employed
as a Mail Processing Clerk, PS-06, in the Agency’s Philadelphia PDC (Processing and
Distribution Center) – Lindbergh, Philadelphia, Pennsylvania. Complainant indicated that he
was diagnosed with a torn rotator cuff on his right shoulder in 2001, and a degenerative patella
syndrome for his right knee in 1989. Complainant also indicated that his medical conditions
were permanent; he had been on the roles of Office of Workers’ Compensation Program
(OWCP) since 2001; and he had not reported to work due to lack of work and had been
receiving compensation from OWCP since December, 2009. Complainant stated that he
contacted Agency management on March 7, 2013, and requested to return to duty with
reasonable accommodations due to his medical restrictions.

Complainant’s manager indicated that after receiving Complainant’s March 7, 2013 request, he
recommended Complainant attend a DRAC (District Reasonable Accommodation Committee)
meeting on April 12, 2013, in order to return him to work as requested. Complainant attended
the meeting. The record indicates that Complainant also submitted to the manager his Duty
Status Report completed by his physician on March 15, 2013. Therein, his physician indicated
that Complainant could return to work on May 1, 2013, with medical limitations: lifting of 30-

2 In the instant complaint, Complainant also alleged discrimination when: he was reassigned to
North Wales Post Office on August 22, 2009; he was subjected to harassment from August to
December, 2009; and he was removed from work on December 16, 2009. The Agency
previously dismissed the foregoing claims due to untimely EEO Counselor contact. Since
Complainant does not contest this dismissal on appeal, we will consider these claims
abandoned.
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40 pounds for 1-2 hours/day; pushing/pulling/reaching above shoulder for 1 hour/day; and he
was unable to perform the essential functions of his regular Clerk position with or without
accommodations.

The Agency indicates and the record reflects that Complainant was offered and accepted a
Modified Mail Processing Clerk position effective May 8, 2013, within his medical
restrictions, described by Complainant’s physician. Complainant acknowledged that he was
returned to work on May 3, 2013.

With regard to Complainant’s back pay claim, there is no evidence that Complainant’s
attending the DRAC meeting on April 12, 2013, delayed his returning to work. Complainant
did not object to the meeting at that time. The DRAC meeting requested by the Agency was
appropriate for them to consider how to appropriately accommodate Complainant.
Furthermore, we note that there is no evidence that his physician cleared him to return to work
before completing the form on May 1, 2013. The Agency, after the physician’s clearance,
returned Complainant to a modified assignment with his restrictions on May 3, 2013. The
Agency also noted that Complainant had been paid salary through OWCP until June 1, 2013.
Complainant does not dispute this. We note that Complainant’s claim concerning his being
removed from work in 2009 is not at issue.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, we note that Complainant has not claimed that he was denied a
reasonable accommodation and he has not claimed that he was required to perform his duties
beyond his medical restrictions. We find that Complainant failed to show that he was treated
less favorably than a similarly situated employee under similar circumstances or that his
attending the DRAC meeting was a pretext for discrimination. Based on the foregoing, we
find that Complainant failed to show that the Agency’s action was motivated by discrimination
as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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.
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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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
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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 17, 2016
Date