[Redacted], Adelle T., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jun 23, 2021

Appeal No. 2020004084 (E.E.O.C. Jun. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adelle T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004084 Agency No. 1G-754-0062-19 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated March 6, 2020, finding no discrimination concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Assistant, Grade 4, at the Agency’s Dallas Processing and Distribution Center in Dallas, Texas. On September 23, 2019, Complainant filed an EEO complaint alleging harassment based on disability and in reprisal for current EEO activity when beginning on or about May 31, 2019, and ongoing: 1. She was denied a reasonable accommodation when her work hours were reduced, she was sent home and was not afforded the opportunity to work eight hours per day. 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. 2020004084 2 2. She was not afforded the opportunity to work overtime. 3. Her name was removed from the weekly work schedule. 4. Her work hours were changed, and she was the only Mail Handler Assistant required to report to work at 10:30 pm. Complainant also alleged that she was subjected to harassment in reprisal for current EEO activity when beginning on or about May 31, 2019, and ongoing: 5. She was not receiving workers’ compensation in a timely manner.2 6. On or about October 3, 2019, she was issued a Letter of Warning. 7. On October 20, 2019, Supervisor Distribution Operations (SDO) continually moved her back and forth between two different work assignments. 8. On October 23, 2019, the SDO reviewed her attendance with her and notified her that she had been Absent Without Leave quite a few times. 9. On October 24, 2019, the SDO refused her medical documentation related to her absence on October 23 - 24, 2019. 10. On October 29, 2019, she arrived at work to find that the SDO had changed the schedule to make the 29th her off day and she was instructed to clock out and was escorted from the building. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant indicated that she had a sprain of ligaments of her lumbar spine, radiculopathy in her lumbar region, lateral epicondylitis, right and left elbow tendinitis, radial styloid tenosynovitis, trigger thumb, right and left trigger finger, left and middle index. She was diagnosed by her physician on December 20, 2018, and January 11, 2019, and her symptoms were permanent. As a result of her medical conditions, Complainant’s restrictions included lifting, carrying, pulling, pushing up to 20 pounds (15 pounds in October 2019). 2 The Agency dismissed claim 5 for failure to state a claim as it stated a collateral attack on the Office of Workers’ Compensation Programs (OWCP). We affirm the Agency’s dismissal. See 29 C.F.R. § 1614.107(a)(1). We note that Complainant does not contest this on appeal. 2020004084 3 To accommodate her disability, Complainant was provided with a modified assignment (limited duty) to perform prepping mails of FSS (flats sequencing systems) and A1’s (priority mail) since January 2019. Since October 2019, her modified assignment added working mixed empty equipment (wrapping pallets). As a Mail Handler Assistant, Complainant’s position required lifting, carrying, pulling, and pushing up to 70 pounds. Her position duties included: loading mail from trucks; separating all mail received from trucks and conveyors for dispatch to other conveying units; separating and delivering mail for delivery to distribution areas; placing empty sacks or pouches on racks; handling and sacking empty equipment; moving bulk mail; and performing other duties incidental to the movement and processing of mail. Regarding claims 1 and 2, the Agency indicated that as a Mail Handler Assistant, a non-career employee, Complainant was not guaranteed eight hours of work per day or overtime. The Agency indicated that overtime was warranted based on regular career employees and the volume of mail. Further, Complainant was not given overtime due to her medical documentation which did not allow her to work overtime. Regarding claim 3, Complainant’s name was removed from the weekly schedule because she was moved to another area and her name was added back to the schedule in the area where she was assigned. Regarding claim 4, Complainant’s scheduled start time was 8:50 pm and 10:00 pm as needed before May 31, 2019. In June 2019, her start time was changed to 3:00 pm on Tour 3 due to business needs. Regarding claim 6, Complainant’s then supervisor issued Complainant the Letter of Warning due to her unacceptable conduct for failure to follow instructions and unacceptable behavior and personal habits. The supervisor indicated that although she instructed Complainant to go home because there was no mail available, Complainant refused to go home and told the supervisor that “you will just have to call the Postal police, cause I’m not leaving.” The Letter of Warning was later rescinded and removed from Complainant’s file via a grievance resolution. Regarding claim 7, the SDO stated that Complainant was moved to the same section of her work where there was an open place for her to work. Complainant might have been moved twice because of the regulars reporting in for work at their scheduled time and bid assignments. The SDO indicated that Complainant did not complain being moved at that time. Regarding claim 8, the SDO stated that as a supervisor, she reviewed all employees’ attendance including Complainant’s attendance. The SDO denied making the remark about Complainant’s Absent Without Leave as alleged. Regarding claim 9, the SDO denied the incident as alleged. Complainant left work four hours early on October 23, 2019, due to her injury. 2020004084 4 When Complainant reported back to work on October 25, 2019, she submitted medical documentation only for October 24, 2019, but not for her absence on October 23, 2019. Complainant does not allege the SDO refused to accept her medical documentation for October 24, 2019. Regarding claim 10, the SDO indicated that Complainant’s schedule, including her day off, were in a rotation with other Mail Handler Assistants in PL320; her schedule was posted when she left early on October 23, 2019; and she called in and tried to work on her unscheduled day. Complainant filed the instant appeal. 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 (EEO MD-110), Chap. 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"). Regarding her request for reasonable accommodation, we will assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. After a review of the record, we find that Complainant failed to show that she was a qualified individual with a disability within the meaning of the Rehabilitation Act. Complainant could not perform the essential functions of her Mail Handler Assistant position with or without a reasonable accommodation and was given a limited duty assignment. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds 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. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 2020004084 5 Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020004084 6 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 June 23, 2021 Date