0120122531
10-31-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120122531
Agency No. 1K-222-0019-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 17, 2012, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final Agency decision (FAD), which found that Complainant failed to establish that he was subjected to discrimination and/or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electronic Technician at the Agency's Dulles Processing & Distribution Center (P & DC) facility in Dulles, Virginia. On November 21, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of disability (back, hip and leg injuries) when on December 23, 2009, and ongoing, he was subjected to harassment including, but not limited to:
1. On December 23, 2009, and ongoing, he was denied Family Medical Leave Act (FMLA) leave;
2) On September 12, 2011 to October 21, 2011, he was sent to training that was not needed;
3) On March 14, 2010, through April 9, 2010, he was sent home due to his injury
and forced to use leave;
4) On April 1, 2010, and ongoing, he was assigned duties outside of his medical Restrictions;
5) On April 9, 2010, he was forced to sign a Limited Duty Job Offer letter,
6) On April 23, 2010, July 24, 2010, and July 22, 2011, he was denied Prime
Time leave;
7) On June 7, 2010, he was accused of abusing leave;
8) On July 16, 2011, he received a Letter of Warning (LOW); and
9) On August 9, 2011, he received a Seven Day Suspension.1
Following an investigation by the Agency, Complainant requested a FAD. The FAD found that assuming arguendo that Complainant established a prima facie case of discrimination based on disability, management articulated legitimate, non-discriminatory reasons for its actions and Complainant failed to show that the articulated reasons were pretext for discrimination. With regard to claim (1), management explained that Complainant failed to follow instructions and called in requesting leave as injury on duty (IOD) rather than for FMLA and because he entered the information incorrectly in the system his leave was not charged as FMLA. Management indicated that once IOD was alleged, FMLA was off the table. Management indicated that on three different occasions, Complainant's supervisor advised him on how to call in, but each time he called in he did not do what was instructed. Regarding claim (2), where Complainant alleged that he was sent to training that was not needed, the acting manager of maintenance, acknowledged that Complainant and other Electronic Technicians were sent to training because there was a deployment of new equipment so all Electronic Technicians and Mail Processing Equipment Mechanics were to be trained on the machine in the event that they would need to use it in the future.
With regard to claim (3), where Complainant alleged that on March 14, 2010, through April 9, 2010, he was sent home due to his injury and forced to use leave. Management explained that following Complainant's injury he was returned to full duty two days later. A month later however, Complainant produced medical restrictions from his doctor that prohibited him from working his entire shift. He was sent home because he was no longer eligible for Continuation of Pay (COP), and as such he had to use his leave to cover his absence. With regard to claim (4), where Complainant alleged that he had been assigned duties outside of his medical restrictions, management argued that Complainant was assigned work casing mail that met his restrictions and at no time was he required to violate his restrictions. Regarding Complainant's contention that the constant twisting and leaning/not sitting while casing mail violated his restrictions, management responded that the work did not violate his restrictions and that he did not have to twist in the manual cases and the mail was in front of him and he sat and put letters in little boxes. It was further noted that the stool Complainant sat on was a regular stool with a footrest and that Complainant sat on the stool and did not have to lean against it.
Management explained that Complainant was not forced to sign a Limited Duty Job Offer letter as he alleged in claim (5). The supervisor maintained that he had no recollection of Complainant not wanting to sign the offer. With regard to claim (6), where Complainant alleged that he was denied Prime Time Leave (PTL), management explained that Complainant was denied PTL because he did not have leave and the local contract did not allow for its approval. Complainant was told that his prime time leave was denied but yet he went on his vacation anyway. Management indicated that it did not make any effort to deny Complainant the ability to earn leave. They explained that Complainant used his leave because he did not have an accepted OWCP case so he could not be paid compensation or COP.
Regarding claim (7), where Complainant alleged that on one of his requests for leave someone wrote that Complainant was "abusing leave." Management maintained Complainant requested Leave Without Pay, which required the approval of the Plant Manager Complainant's supervisor annotated the request indicating that the Complainant abused his leave because he was not coming to work. The supervisor maintained that this was his way of informing the Plant Manager of Complainant's leave issues. With regard to claim (8), where Complainant was issued a LOW, management explained that he was issued the letter for unsatisfactory attendance and failure to maintain his schedule because he had 8 hours of unscheduled sick leave on May 10, 2011, 24 hours of unscheduled LWOP on June 26, 2011, and 24 hours of LWOP on July 3, 2011. Management indicated that Complainant did not agree with the LOW because he believed the absences should have been FMLA protected. Complainant was denied FMLA however because he called in for the wrong type of leave and when he called in for IOD, he did not have an accepted IOD claim, and was not protected and therefore could be disciplined. Finally, with regard to claim (9), where Complainant received a seven day suspension, management maintained that even though Complainant did not have approved leave for his vacation, he elected to go on anyway so he was AWOL for a week. Complainant was suspended for not following instructions as he did not have approved leave. With respect to Complainant's argument that Form 3971 was not returned to him within the required 48 hours, management indicated that Complainant was notified in writing that he did not have enough leave to take his vacation and was told that his request was denied within 48 hours. Complainant submitted a second request the day before he left, and that too was denied, it could not however be returned to him because he had already left for vacation.
To show pretext, Complainant argued that he had not been provided an accommodation the Agency however documented that Complainant had been accommodated according to his medical documentation and his listed limitations.
The FAD also determined that Complainant's allegation of harassment failed as the incidents complained of where matters which occupied the normal scope and course of industrial relations and were the daily interactions between a supervisor/manager and his or her employees. The Agency found that the issues complained of even when considered in totality were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the faulty system employed by the Agency cannot supersede the law. He argues that management cannot refuse to change his absence to FMLA because the system does not allow it and then punish him for failure to keep regular work hours. Complainant argues that in order to accommodate him an exhaustive search should have been made to find him something to do within his restrictions before sending him home. Complainant asserts that he pointed out a position in the stock room whose duties he could have performed but he was denied and sent home. Complainant argues that he does not understand how the supervisor failed to remember a 10 minute argument about him having the right to consult his doctor and see a Union Steward before signing the Limited Offer Letter.
The Agency indicated that its arguments were fully presented in the FAD.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if we assume arguendo that Complainant established a prima facie case of disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above, and Complainant failed to show that the reasons were pretext for discrimination.
Further, with regard to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements he has not presented any evidence which suggests that discriminatory animus was involved. We specifically note that Complainant's argument that he was denied a reasonable accommodation when he was not allowed to work in the stock room fails. The record shows that those duties were not a part of a vacant funded position to which Complainant could have been reassigned.
Finally, with regard to Complainant's harassment allegation we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) Complainant's claim of 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). Accordingly, the preponderance of the evidence of record does not establish that discrimination or harassment occurred.
Therefore, the Agency's FAD which found that Complainant failed to show that he was subjected to disability discrimination and harassment is AFFIRMED.
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.
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 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 the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__10/31/14________________
Date
1 The Agency dismissed claims (1) and (5), for failure to state a claim. Claims (1), (2), and (5) were dismissed as a collateral attack and for failure to state a claim. Notwithstanding, the claims were addressed on the merits. As such, they will be included in this decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122531
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122531