Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Feb 20, 2015

0120123390 (E.E.O.C. Feb. 20, 2015)

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

Complainant,

v.

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

Appeal No. 0120123390

Hearing No. 520-2012-00200X

Agency No. 4B-040-0032-11

DECISION
On August 31, 2012, Complainant filed an appeal from the Agency’s July 27, 2012 final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at
the Agency’s Processing & Distribution Center (P&DC) in Scarborough, Maine.
Complainant’s job requires him to load, unload and otherwise move mail based on a “mail
arrival profile” and “an equipment run plan” which is designed to meet dispatches to the
network and Maine Post Offices at specific times to meet service commitments. The P&DC, or
the Plant, as it is known, is a 24-hour operation. Complainant suffers from a sleep disorder,
obsessive compulsive disorder and major depression. These impairments impact his ability to
focus, concentrate, remember and organize. The impairments also impact his ability to wake
up. Consequently, Complainant oversleeps and fails to use the Agency’s procedures for
calling in an unscheduled absence.

On October 12, 2011, Complainant filed an EEO complaint alleging that the Agency denied
him reasonable accommodation in violation of the Rehabilitation Act. At the conclusion of the
investigation, the Agency provided Complainant with a copy of the report of investigation and
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notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to
the case granted the Agency’s motion for summary judgment and issued a decision on July 24,
2012. The AJ adjudicated the case under a disparate treatment theory, finding that
Complainant failed to prove that the Agency’s explanation for denying his request for
reasonable accommodation was a pretext for disability discrimination. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp.

, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of the case.
We find that the grant of summary judgment was appropriate. Complainant requested to be
excused from the Agency’s call in requirements. We decline to find that this is a request for
reasonable accommodation within the meaning of the Rehabilitation Act because being excused
from the call in requirements would not enable Complainant to perform the essential functions
of his position, nor would it enable him to enjoy equal benefits and privileges of employment
as are enjoyed by other similarly situated employees without disabilities. 29 C.F.R. §
1630.2(o)(1)(ii-iii).

We note that this is not a case where Complainant requested to adjust his starting time. To the
extent that what Complainant was really requesting was to be able to call in or report to work
whenever he felt able, the Commission has found that such an accommodation is not
reasonable on its face. It is not "plausible" or "feasible" for an employer to excuse chronic
erratic absenteeism and tardiness by an employee who cannot provide timely notice sufficient
to enable the employer to ensure adequate staffing. See Wiley v. United States Postal Serv.,
EEOC Appeal No. 0720020105 (Sept. 15, 2003), request to reconsider denied, EEOC Request
No. 0520040147 (Dec. 11, 2003).1

For the reasons set forth above, we find no violation of the Rehabilitation Act, and we
AFFIRM the Agency’s final order.

1 Unlike in Wiley, here, the Agency recognized Complainant’s request for accommodation and
engaged in the interactive process to try and identify a solution.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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.

0120123390

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RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
February 20, 2015