0120162023
04-11-2018
Jerome D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jerome D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120162023
Hearing No. 480-2015-00163X
Agency No. 1F-921-0030-14
DECISION
On June 4, 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 May 12, 2016 final order 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a full-time Mail Processing Clerk at the Agency's Processing and Distribution Center in San Bernardino, California.2
On June 26, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to hostile work environment harassment on the bases of race (Asian), national origin (Filipino), color (Brown), disability (heart condition and depression, anxiety), age (64), and reprisal for prior protected EEO activity (two EEO complaints in 2014 and a request for accommodation) when:
1. on January 31, 2014, Complainant's Supervisor (S1) yelled at Complainant while he was working,
2. in January 2014, S1 accused Complainant of working too slow,
3. on an unspecified date, management denied Complainant's request to be "paid twice" for working without a partner although some employees received double pay,
4. on an unspecified date, management stated that Complainant's "off-work order" from his physician was not acceptable,
5. on an unspecified date, management tampered with Complainant's Request for or Notification of Absence (PS Form 3971),
6. about April 8, 2014, S1 issued Complainant a Letter of Warning (LOW),
7. about April 30, 2014, S1 issued Complainant a Notice of 7-Day Suspension, and
8. on unspecified dates, management denied Complainant reasonable accommodation.
The Agency investigated Complainant's claims.
Investigation
Complainant's Statement
During the EEO investigation, to support his claims, Complainant stated that S1 yelled at him for paging her to his work area. Complainant stated that S1 said he was not working fast enough, and he asked her if she was harassing him. Complainant stated, ultimately, S1 ordered him to the Supervisor's Office and yelled at him when he followed her to her desk instead. Complainant stated "[S1] does not have a business reason to yell at me at any time . . . [or] for creating a hostile work environment." Complainant stated that employees usually work in pairs, so when someone works alone they are paid twice, but he was not. Complainant stated that the accommodation he requested is to work without harassment by S1. Also, he stated that, due to his medical condition, he should not have to maintain a certain speed. Finally, Complainant pointed to his leave requests dated April 21, 2014, May 20, 2014, and June 16, 2014 as requests for accommodation.
Agency Response
For claim (1), S1 (African-American, Black, 50, no prior EEO activity regarding Complainant) stated that Complainant left work before the end of his tour without letting her or other management know he was leaving. S1 stated, several days later, Complainant paged her to his machine several times and she spoke to him at the same level which he spoke to her and so that he could hear her over his machine. As to claim (2), S1 stated that she accused Complainant of not working "efficiently." S1 explained that Complainant was not keeping his machine-ledge fully loaded with mail and it is not efficient processing when the ledge is constantly running out of mail. Regarding claim (3), S1 stated that employees are not paid twice for working without a partner. For claim (4), S1 stated that she was not aware that Complainant's "off work order" was not accepted. As to claim (5), S1 stated that Complainant requested annual leave for March 31, 2014, and she did not tamper with his leave request, form 3971. Regarding claim (6), S1 stated that she issued Complainant a LOW for failure to follow instructions and absence without leave. S1 stated that Complainant ended his tour early, without informing management of his early departure, and without submitting a leave request form 3971. For claim (7), S1 stated that she issued Complainant a 7-Day Suspension for failure to follow instructions, unacceptable work performance, and unacceptable conduct. As to claim (8), S1 stated that Complainant did not request accommodation.
Investigative Record
The investigative record contains the documents that follow.
1. LOW, dated March 11, 2014, citing "failure to follow instructions/absence without leave (AWOL)."
2. Request for or Notification of Absence dated April 21, 2014, for 8 hours of annual leave between April 21, 2014 2100 and April 22, 2014 0550, citing "appointment for counseling at 4:30 pm 4-21-14 at Kaiser Permanente Behavioral Medicine." S1 "disapproved" the request, stating "Employee should be able to get enough rest to make [appointment] and be at work tomorrow."
3. Family and Medical Leave Act (FMLA) request for unscheduled absences up to eight times per month for one to three days per episode, related to depression. The FMLA request was approved, and is dated May 13, 2014.
4. Return to Work Clearance letter, dated May 1, 2014, asking Complainant to provide documentation "clearly stating" he is able to return to work and is not in danger of harming himself or others. The dates Complainant was to be absent were April 30, 2014 to May 9, 2014.
5. Request for or Notification of Absence dated May 20, 2014, for 56 hours of sick leave under FMLA between May 20, 2014 and May 30, 2014, citing off-work order from physician. S1 disapproved the request, stating "Employee has not provided acceptable documentation for absence per [Employee and Labor Relations Manual] E.L.M."
6. Request for or Notification of Absence dated June 16, 2014, for 40 hours of sick leave under FMLA between June 17, 2014 and June 23, 2014, citing an off-work order from his physician. "Void" was written across the request. Also, in very faint writing, "Obsolete 3971 does not qualify for FMLA" is written on the request. There is no management signature on the request.
7. Leave Year 2014 Absence Analysis for Complainant, stating Complainant utilized 32 hours of leave without pay (LWOP) and 32 hours of sick leave between May 20 and 30, 2014. The other days during that period were nonscheduled days and a holiday. The Analysis also stated that Complainant used 40 hours of LWOP in lieu of sick leave between June 17 and June 23, 2014.
Post-Investigation
Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing. The assigned AJ issued a decision without a hearing on April 28, 2016. The AJ found that Complainant failed to show the Agency's actions were based on discriminatory motives. The Agency subsequently issued a final order adopting the AJ's finding of no discrimination as alleged. The instant appeal from Complainant followed.
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, 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").
Hostile Work Environment & Disparate Treatment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994).
Here, we find that Complainant failed to establish a claim of actionable harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on race, national origin, color, disability, age, or reprisal. Complainant's Supervisor, S1, stated: she spoke to Complainant at the same level which he spoke to her and so that he could hear her over his machine; she did not accuse Complainant of working slowly but of not working "efficiently;" the Agency does not have a policy of paying employees twice for working without a partner; she was not aware that Complainant's "off work order" was not accepted; she did not tamper with Complainant's leave request; she issued Complainant a LOW for failure to follow instructions and absence without leave; she issued Complainant a 7-Day Suspension for failure to follow instructions, unacceptable work performance, and unacceptable conduct; and Complainant did not request accommodation.
We conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
Further, to the extent that Complainant alleged disparate treatment, even if we assume that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p).
After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002); see also, Abeijon v. Dep't of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994).
Assuming, without finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency failed to reasonably accommodate him when his supervisor asked him questions about his work and stated that Complainant was not working quickly enough, or when management did not approve his April 21, May 20, and June 16 requests for leave.
During the relevant time, Complainant was a Mail Processing Clerk at the Agency. Complainant has a heart condition and mental health concerns. Complainant stated that the Agency denied his requests for accommodation when it allowed S1 to harass him, S1 held him to a speed standard for his work, and S1 denied his requests for leave in April, May, and June 2014. The record reveals that S1 stated that Complainant did not request accommodation. S1 also stated that she sought for Complainant to work more "efficiently" rather than faster. Further, the record shows, under FMLA, Complainant requested to have unscheduled absences up to eight times per month for one to three days per episode, related to depression. The Agency approved his FMLA request May 13, 2014. The record does not show that Complainant requested a change in work expectations or extended leave usage, as a reasonable accommodation. Notwithstanding, based on the record, Complainant used 32 hours of LWOP and 32 hours of sick leave May 20 - 30, 2014, and 40 hours of LWOP in lieu of sick leave June 17 - June 23, 2014. Complainant's April 21, 2014 request for leave was for annual leave rather than sick leave, and it was to address the day after Complainant's appointment. Here, Complainant failed to show Agency denial of a reasonable accommodation request.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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.
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
April 11, 2018
__________________
Date
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.
2Complainant retired from the Agency effective October 31, 2014.
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