Margarito C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Aug 8, 2019

0120182796 (E.E.O.C. Aug. 8, 2019)

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

Margarito C.,1
Complainant,

v.

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

Appeal No. 0120182796

Hearing No. 520-2017-00239X

Agency No. 4B-120-0014-16

DECISION

On August 10, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency's final action dated July 19, 2018, adopting
the decision of an Administrative Judge (AJ) with the EEOC that procedurally dismissed his
complaint of unlawful 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.

BACKGROUND

At the time of events giving rise to this equal employment opportunity (EEO) complaint,
Complainant was employed by the Agency as a Part-time flexible Sales, Services/Distribution
Associate, PS-4700-06 at various locations in New York.

On August 12, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him
to discrimination, harassment, and hostile work environment based on his sex (male), disability
(anxiety), and age (over 40) when:

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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1. The American Postal Workers Union (APWU) contract became effective on May 23, 2011,
he was not converted to Non-Traditional Full-Time status, nor given custodial duties in the
Dexter Post Office;

2. In January 2014, he was offered a full time job as a clerk, but it was given to a younger
female instead;

3. Starting around February 2014, in the Dexter Post Office, through the date he performed
duties there, he was given split-shifts Monday through Friday. He stopped performing
duties at the Dexter Post Office by January 2, 2016;2

4. On January 15, 2015, his request to be reassigned to the Watertown Post Office in New
York was denied;3

5. In December 2015, he learned that he was not selected to be the Supervisor of Customer
Service in Watertown, New York, for which he applied on October 28, 2015;

6. On December 9, 2015, he was issued a letter of warning;

7. On January 2, 2016, after he provided medical documentation, he was sent home;

8. On March 2, 2016, he was given an accommodation to the Carthage Post Office in New
York with far fewer hours; and

9. On April 8, 2016, he disagreed with the results of a management investigation.

The Agency dismissed issues 1, 2, and 9. It found that Complainant did not timely initiate EEO
counseling on issues 1 and 2, and that issue 9 failed to state a claim.

Following an investigation of the remaining allegations, the Agency provided Complainant with a
report of investigation (ROI), and notice of right to request a hearing before an AJ with the EEOC.
Sometime after Complainant requested a hearing, the Agency filed a Motion to Dismiss the issues
it investigated because Complainant failed to timely initiate EEO counseling. Complainant
opposed this motion.

2 The Agency defined this issue as split shifts occurring on unspecified dates. In his August 2016
EEO complaint, Complainant wrote he was working split shifts for 2½ years. ROI, EEO Complaint
at 3, Bates No. 7. He later stated that this occurred when he performed duties at the Dexter Post
Office. ROI, Affidavit A, at 14, Bates No. 116. He stopped performing duties there on January 2,
2016. ROI, Affidavit A, at 113, Bates No. 113.

3 The Agency defined this issue as occurring in August 2015, but in his EEO investigatory
affidavit, Complainant clarified this occurred on January 15, 2015. ROI, Affidavit A, at 5, Bates
No. 107.
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Previously, regarding issue 7, Complainant relayed to the EEO counselor that on January 2, 2016,
he made a request for reasonable accommodation to his first line supervisor (S1). Specifically, he
gave him a letter by his psychiatrist dated December 15, 2015, indicating he had Generalized
Anxiety disorder and found “his current physical work environment” worsens his mental health
and is detrimental to his functioning. The record reflects that “current physical work environment”
meant the Dexter Post Office, e.g., in his EEO investigatory affidavit, Complainant stated the
psychiatrist’s letter indicated he should be moved to a different post office. Complainant affirmed
that when he was sent home, management said he would remain on sick leave until they found him
work in another post office.

Regarding issue 8, Complainant relayed to the EEO counselor that when the Agency on March 2,
2016, finally gave him an assignment, it was with the Carthage Post Office in New York, which
was far from his home with fewer work hours. This assignment was scheduled to start on March
7, 2016. ROI, Affidavit D, at 12, Bates No. 200. The Postmaster of the Carthage Post Office stated
that she planned to use Complainant to help with rural mail count and distribution Monday –
Saturday, from 6:45 AM to 8:45 AM (12 hours), and after he had a drawer he would have worked
the window in the afternoons, as needed. The Carthage Postmaster stated that she left Complainant
messages about starting his assignment, but he never responded and showed up to work without
notice on April 18, 2016, at 7:30 AM, after the mail was almost completely distributed and while
she was away on annual leave. The Postmaster stated that because Complainant did not show up
so many times before, she gave up hope and did not inform her subordinate acting supervisor that
Complainant may show up. The Postmaster stated that her acting supervisor did not know when
Complainant should work again, later left a message with Complainant that he was needed on
April 23, 2016, from 6:45 AM to 8:45 AM, and Complainant did not respond but came to work.
In her report, the EEO counselor wrote that Complainant relayed that he reported to the Carthage
Post Office twice and his wife got very upset over his work situation so he stopped reporting there.
He explained elsewhere that his wife made suicidal comments.

Complainant’s second line supervisor (S2) stated he met Complainant on April 8, 2016, and
advised him he expected a clerk position vacancy in the Chaumont bid cluster – closer to his home
than Dexter, and Complainant did not appear interested. S2 stated that on August 18, 2016, he
verbally advised Complainant, in the hallway of the Watertown Post Office, that a clerk position
was opening in the Alexandria Bay bid cluster, and Complainant expressed hesitancy.

The AJ granted the Agency’s Motion to Dismiss. The Agency adopted the AJ’s decision.
Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that an aggrieved person must initiate
contact with an EEO counselor within 45 days of the date of the matter alleged to be discriminatory
or, in the case of a personnel action, 45 days of the effective date of the action. The time limit
shall be extended when the individual shows that he was not notified of it nor otherwise aware of
it. Id., at .105(a)(2).
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The AJ was unpersuaded by Complainant’s contention that he was not provided adequate or
complete notice of the above time limitation because in 2014, Complainant took No Fear Act
training which covered the 45 day time limit. We agree. On appeal, Complainant does not argue
he was not notified of the time limit.

The AJ dismissed all the issues the Agency accepted for investigation because Complainant
initiated EEO counseling on May 4, 2016, beyond the 45 day time limit. We add that Agency
dismissed issues 1 and 2 for the same reason prior to the investigation.

Regarding issues 7 and 8, in opposition to the Agency’s Motion to Dismiss, Complainant argued
that on January 2, 2016, he requested reasonable accommodation in the form of working at a
different location. He argued that rather than providing him a reasonable accommodation, without
his input the Agency assigned him to the far away Carthage Post Office with a reduction to his
work hours from 36 to 12 weekly, and that the failure to reasonably accommodate him continues
and constitutes a recurring violation each day it occurs. The AJ disagreed with Complainant’s
argument, finding that issue 8 constituted a discrete incident of Complainant being dissatisfied
with a specific accommodation provided by the Agency, not an ongoing failure to reasonably
accommodate.

On appeal, Complainant reiterates the ongoing failure to reasonably accommodate argument,
adding he was sent to the Carthage Post Office to work only two hours each day on April 18, 2016
and April 23, 2016, and that both these dates are within the 45 calendar day time limit. This
argument is not persuasive. On March 2, 2016, Complainant was assigned to report to the Carthage
Post Office starting on March 7, 2016, did not respond to messages scheduling him to come in,
and then without notice showed up on April 18, 2016. This strongly suggests that by March 7,
2016, Complainant did not view this assignment as a viable reasonable accommodation. Further,
the issue 7 matter of Complainant being sent home on January 2, 2016, continued at most to March
7, 2016, the effective date he was given a new assignment at Carthage.

Complainant did not raise issue 9, which the Agency dismissed for failure to state a claim, in
response to the Agency’s motion to dismiss, nor on appeal. Accordingly, we need not address the
matter.

The Agency’s final action is AFFIRMED.

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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.

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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

August 8, 2019
Date