Zachariah W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 24, 20180120170160 (E.E.O.C. Oct. 24, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachariah W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120170160 Hearing No. 460-2015-00099X Agency No. 4G770019314 DECISION On October 6, 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 September 23, 2016, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision (FAD). ISSUES PRESENTED Whether Complainant was discriminated against based on disability (unspecified) when: he was charged with Leave without Pay for either a part day or whole day; he was required to ask for light duty, management ignored his work restrictions, and on unspecified date(s), management asked him to have his doctor change his restrictions. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s North Shepard Station facility in Houston, Texas. Complainant alleged that M1, 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. 0120170160 2 Manager, Customer Services, M2, Supervisor Customer Services, and M3, another Supervisor Customer Services intentionally subjected him to discriminatory harassment because of his disability when: 1. On June 23, 2014 and continuing, he was charged with LWOP for either a part day or whole day; 2. On July 14, 2014, he was instructed to clock out and not return to duty until he asked for light duty; 3. On unspecified dates management ignored his work restrictions; and 4. On unspecified date(s) management asked him to have his doctor change his restrictions. Complainant claimed to have a disability based on an injury occurring on February 15, 2012. On September 18, 2013, a Claims Examiner, Office of Workers’ Compensation (OWCP), W1, sent a letter to the Agency concerning Complainant’s OWCP claim. The letter stated, in pertinent part, that “according to the recent medical evidence of file, the employee (Complainant) has been released to work with no restrictions. A report was attached to the letter from a physician concerning Complainant. The report, dated July 9, 2013, stated, among other things, that: Question 3. What are the medical findings to support [that] any current disability is medically connected to the work injury or to the factors of employment for which the case was accepted? Answer: The asymmetric lower extremity [is] compatible with a herniated disc or peripheral neuropathy on left side, but not with the accepted conditions. Question 4: Can (Complainant) perform the physical requirements of a letter carrier as outlined in the enclosed statement of accepted the facts [SIC]? Answer: As far as the accepted conditions, he (Complainant) can perform his full duties. The record indicates that Complainant used full or partial leave without pay every workday beginning June 23 through October 10, 2014. A statement from a second physician, dated June 27, 2014, identified the following restrictions for Complainant: no standing and/or sitting for more than 30 minutes at a time, no lifting or carrying of objects greater than 10 pounds or pushing or pulling; and limit work duration to 4 hours per day. 0120170160 3 Another PS Form 3971 in the record, stated that “seven hours of absence were requested by Complainant for June 28, 2014.” In response, the Agency requested “new medical/clear documentation.” Claim 1: M1 testified that once Complainant was cleared to return to work from his on the-job injury, he was expected to work eight hours. He indicated that Complainant was out of leave and he could not work for eight hours. LWOP was the only leave that could be entered into the system. M1 stated that Complainant was guaranteed 40 hours, so some sort of time had to be entered to complete the eight hours. He maintained that he entered 1.77 LWOP on June 23, 2014 for a partial day under code 049, which made Complainant eligible to get paid by the Department of Labor (DOL). M1 maintained he was unaware that the DOL was not paying Complainant anymore and he received LWOP under code 049 until July 5, 2014. He asserted that Complainant worked over six hours on June 23, 2014, exceeding his restrictions, and it was his responsibility to ensure he did not go over his restrictions. M1 explained Complainant was charged LWOP because he was guaranteed 40 hours and did not have any type of leave to cover the hours he did not work. He noted that the system would have charged Complainant LWOP as a default if no leave would have been entered. Claim 2: M1 explained that Complainant had to submit a request for light duty to the district. He indicated that he gave Complainant the paperwork for light duty, but did not remember telling him to clock out and not return until he requested light duty. M1 asserted that he explained to Complainant that if he could not work a full day, he would have to request light duty. He noted that Complainant was a carrier and had to work a specific route unless he had a documented limited or light duty case. M1 indicated that Complainant was returned to full duty by the OWCP for his on-the-job injury; however, he kept stating he could not work a full day. He maintained that he told Complainant he would have apply for light duty because the accepted claim for limited duty was closed and he was released to full duty from his accepted claim. M1 stated that he told Complainant he would have to ask for light duty for the other medical issues not related to the [OWCP claim]. He maintained that Complainant’s medical condition was not a factor in the matter. Claim 3: M1 stated he was not sure of Complainant’s restrictions from June 23, 2014, through July 14, 2014 because he had several restrictions that limited the hours he could work. He indicated Complainant was required to perform his carrier duties within his restrictions and that his OWCP doctors’ orders were not ignored. M1 stated Complainant was returned to full duty for his accepted OWCP claim and refused to submit a light duty request for his non-OWCP restrictions. M1 argued that Complainant’s medical condition was not a factor in the matter. 0120170160 4 Claim 4: M1 asserted Complainant was never asked to change his medical restrictions on any of the dates at issue. 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). Complainant requested a hearing but the AJ dismissed the hearing request after finding that Complainant had failed to comply with her orders and remanded the matter to the Agency for a final decision. 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. CONTENTIONS ON APPEAL For the most part, Complainant contests the AJ’s dismissal of his hearing request, and the conclusions reached by the Agency in its final decision. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS At the outset, we do not find that the AJ abused her discretion in this case by dismissing Complainant’s hearing request and remanding this matter back to the Agency for the issuance of a final decision. Administrative Judges have inherent powers to conduct a hearing and issue appropriate sanctions. EEO-MD 110 Ch. 7, § III(D) (Aug. 5, 2015); Complainant v. Dep’t of Commerce, EEOC Appeal No. 0120140776 (Feb. 13, 2015). AJs have broad authority over the conduct of hearings. 29 C.F.R. § 1614.109 et seq. If a party does not respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3). 0120170160 5 Disparate Treatment based on Disability In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies, as it does here, its decisions were motivated by Complainant’s disability and there is no direct evidence of discrimination, 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. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). Assuming, arguendo, that Complainant established a prima facie case of disability discrimination, we find that the Agency provided legitimate, non-discriminatory reasons for its actions as set forth above. Moreover, we also find no persuasive evidence of pretext. The facts provided do not establish discrimination based on Complainant’s disability. To the contrary, the Agency proved, by a preponderance of the evidence, that it fully accommodated Complainant’s disability and related needs. The Agency interacted with Complainant to schedule time off, to adhere to the recommendations and requests of Complainant’s physicians, and to remain involved in the interactive process addressing Complainant’s disability. Regarding Complainant’s hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 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 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. 0120170160 6 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. 0120170160 7 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 October 24, 2018 Date Copy with citationCopy as parenthetical citation