[Redacted], Alvera L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Dec 7, 2020

Appeal No. 2020005042 (E.E.O.C. Dec. 7, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alvera L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020005042 Hearing No. 560-2017-00168X and 560-2018-00086X Agency No. 4J630010716 and 4J630009417 DECISION On July 24, 2020, 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 June 4, 2020, final order concerning her 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales Services Distribution Associate, PS-06, at the Agency’s Post Office in Jonesburg, Missouri. 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. 2 Complainant indicated on her Notice of Appeal that she received the Agency’s final decision on July 13, 2020. We accept her statement and find the appeal to be timely. In so doing, we note that the Agency has not alleged the appeal is untimely, nor has it submitted any evidence to suggest it was not received on the date Complainant indicated. 2020005042 2 On August 1, 2016, Complainant filed an EEO complaint alleging discrimination and ongoing harassment on the bases of sex (female) and disability when the Agency failed to accommodate her disability and forced her to obtain medical documentation from her physician every time she requested leave for her medical condition (Agency No. 4J630010716). The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), determining that Complainant was not “aggrieved” within the meaning of EEO regulations. Complainant appealed to the Commission and the Commission reversed the Agency’s dismissal and remanded the complaint for processing. In a second complaint dated August 3, 2017, Complainant alleged she was retaliated against for prior protected EEO activity when, on June 29, 2017, she was placed on Emergency Placement (Agency No. 4J630009417). The Agency conducted investigations with respect to both complaints which produced the following pertinent facts: Agency No. 4J630010716 Complainant attested that she suffered from an overgrowth of bacteria in her stomach that causes severe pain and an inability to control bodily functions when she has an attack. She attested that she sees a physician as needed and estimated that she saw a physician every four to six months. Regarding the effect of her symptoms on her ability to perform her job duties, Complainant attested that she does not have any medical work restrictions or limitations aside from needing to leave when she has flare-ups. She attested that her condition limits her when she does not have immediate access to a bathroom and there are times when she is incapacitated for several hours. Complainant attested that she did not disclose her condition to management until she had an accident in the bathroom. She attested that she informed management that her condition required doctor visits. She attested that she formally notified the Agency of her condition when she provided Family & Medical Leave Act (FMLA) paperwork. Complainant attested that a Manager, Customer Service (Postmaster1) failed to accommodate her medical condition on multiple occasions between February 2016 and July 2016, including March 28, 29, and 31, 2016; April 1, 2, 4, 14, and 19, 2016; May 2, 26, and 31, 2016; and June 4, 20, and 29, 2016. She attested that, while she did not have medical restrictions and did not request a formal reasonable accommodation, management failed to abide by her FMLA-approved leave when she was experiencing issues related to her medical condition, including having to leave. Complainant attested that her FMLA approval stated that, aside from pre-arranged tests and appointments, it was possible that she would have to use up to two days, or eight hours per day, when needed, and that the leave would need to be unscheduled. Complainant attested that, early on, she utilized more time with a doctor’s excuse. 2020005042 3 Complainant attested that management required her to provide medical documentation for her leave requests associated with her medical condition. She attested that they requested documentation for every absence. Complainant attested that she was off work for either a full or partial day on the following dates in 2016: March 15, 18-27; March 28-April 3; April 4-5, 7, 14, 16, 18-19, and 21; May 2, 23, 26, 28, and 31; and June 2, 20, and 27-30. She explained that some of these dates were for scheduled doctor’s appointments and some were due to illness. She asserted that she never received a signed/approved PS Form 3971 for her absences. She also reported that Postmaster1 informed her that he had a right to ask her for documentation anytime that he wanted to do so. Complainant attested that she disagreed with this because her illness and need for leave was documented in her FMLA paperwork. Complainant attested that she also believed her sex was a factor because she was not part of “the boys club.” Postmaster1 and the City Carrier/204B (Supervisor1) acknowledged that Complainant had FMLA protection but attested that they had not seen her FMLA paperwork. Postmaster1 attested that Complainant had no problems completing her work without restrictions when she was at work. Postmaster1 attested that, with respect to Complainant’s requested leave, management may require medical documentation at any time, regardless of whether an employee has an FMLA case. He explained that Complainant was advised that, due to her call-in history, simply providing her FMLA case number for each unscheduled absence was insufficient, and medical documentation would be required for all unscheduled leave. He attested that he made this decision without any other management officials’ involvement. He explained that the reason for the requirement was Complainant’s numerous unscheduled absences. While he did not recall whether the specific leave requests were denied or granted, Postmaster1 attested that either he or Supervisor1 would have made the determination on the request during that time. Postmaster1 also attested that he relied upon the Employee Labor Relations Manual when making determinations regarding whether to grant Complainant’s requested FMLA leave. Supervisor1 attested that he had no knowledge of Complainant having any modified job assignment or work restrictions. He also attested that he did not make any decisions regarding Complainant’s leave, including FMLA requests, as these decisions were made by Postmaster1. He also attested that Postmaster1 made the decision requiring Complainant to provide documentation and, most of the time, Complainant would bring a doctor’s note for her absences. Agency records document that, during the period at issue, Complainant was approved for FMLA leave, including scheduled and unscheduled leave. The record includes numerous Requests for Sick Leave and Requests for Annual Leave, documenting Complainant’s illness or treatment during the period at issue, some of which indicate management approval, and some of which do not indicate any approval. 2020005042 4 Agency No. 4J630009417 Regarding her alleged basis of retaliation, Complainant cited the first complaint in this decision, Agency No. 4J630010716, as her prior EEO activity. The Agency’s named management in the instant complaint, including Postmaster1, another postmaster (Postmaster2), and a Manager, Post Office Operations (Manager1), generally attested to having some knowledge of Complainant’s prior EEO activity. Complainant alleged that, on June 29, 2017, she was subjected to an Office of Inspector General (OIG) interview, during which OIG officers interrogated and accused her, trying to get her to admit things she had not done. She stated that Postmaster2 entered the room where she was being questioned and placed her on Emergency Placement. Complainant generally attested that she was placed on Emergency Placement due to incorrect postage on personal packages she mailed and/or her use of coupons. She attested that the coupons she used were in part, coupons that she purchased or received from family. Regarding her allegation of retaliation, Complainant noted the closeness in time to her prior EEO case advancing to the hearing stage, the Agency’s installment of cameras in the facility, and the allegations and claims made against her. She also alleged that, during this time, Postmaster1, who had transferred to another Agency facility, was in town and spending time on the computer at the Warrenton Post Office and that he was there when the cameras were installed. Complainant noted that the Warrenton Post Office and the Jonesburg Post Office both fell under the management of Postmaster2 whose office was in Warrenton. Postmaster2 denied being present during the OIG interview but attested that he met with the OIG officers and he made the decision to place Complainant on Emergency Placement after the OIG shared some of their evidence with him, including allegations that Complainant had created a medical excuse and signed the doctor’s signature; had taken postage stamps from customers’ mail and placed them on her packages; was using the bank’s metered strips to mail her own packages; had taken fifty $10 Kohl’s Customer Cash Coupons that were sent to customers and used them to make purchases; and was recorded on video using the Agency’s computer equipment to produce forged doctor’s notes to support her use of FMLA leave. Postmaster2 attested that the OIG investigation was initiated because another post office received a mis-sorted package that was sent by Complainant that did not have proper postage. It was mis- sorted twice due to the sorting machine misreading the package. He generally attested that discrepancies between the package weight and postage raised a red flag. Postmaster2 attested that, at the time of the investigation relating to the instant complaint, the OIG investigation was still ongoing, and he had not received a copy of the OIG report. 2020005042 5 Manager1 attested that Postmaster2 contacted her because he believed Complainant was engaging in financial wrongdoings at the Agency’s facility. She attested that she told him to contact the OIG if he had any questions, which he did, and this led to the placement of hidden cameras at the facility. She attested that video showed Complainant engaging in improper activities with Agency funds. Manager1 attested that she concurred on the decision to place Complainant on Emergency Placement after the OIG conducted the investigation and discovered Complainant’s activities. She attested that she relied on information from the OIG and Postmaster1 in making the decision to concur with placing Complainant on Emergency Placement and Complainant’s prior EEO activity had nothing to do with her decision. Postmaster1 attested that he was currently working at another agency facility in another state and had no reporting relationship to Complainant when she filed this complaint. He explained that he was in the Warrenton office during the time of the events of this complaint because this was where his computer was when he worked in that office and he needed some old files from his computer. He also stated that he had a house in Warrenton and visits there 2 or 3 times a year. He explained that, if he needed do Agency work while there, he would use the computer in the Warrenton office. He attested that he had no role in the decision to place Complainant on Emergency Placement. A letter dated June 30, 2017 from the Agency to Complainant provides written confirmation that Complainant was placed on an off-duty status (without pay) (Emergency Placement), effective June 29, 2017. The letter provides that a preliminary investigation raised serious concerns over Complainant’s conduct, including allegations that Complainant had taken multiple Kohl’s coupons out of the mail and used them for her personal benefit and that she took postage stamps off customers’ envelopes and local bank meter strips and then used them for her personal use on merchandise that she sold and mailed to customers. It provides the action was being taken because her retention on duty could result in the loss of mail or funds. The letter is signed by Postmaster2 with Manager1 as the concurring official. At the conclusion of the investigations, the Agency provided Complainant with a copy of each report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 10, 2018, motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on May 29, 2020.3 The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant generally argues that, because she had FMLA-approved leave, she should not have been asked for a doctor’s note every time she left work for her medical condition. She also asserts that, regarding the second complaint, Postmaster1 came to the office to install the cameras in retaliation for the first complaint, as he did not want to lose in the first complaint, and the Agency illegally installed cameras to attempt to catch her doing something to support firing her. 3 The AJ’s decision addressed both complaints. 2020005042 6 In response, the Agency argues that Complainant’s arguments on appeal are insufficient to support reversing the decision. The Agency asks that we affirm its final decision and dismiss Complainant’s claims in entirety, with prejudice. 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). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Complainant was given ample notice of the Agency's motion for a decision without a hearing, a comprehensive statement of the allegedly undisputed material facts, the opportunity to respond to such a statement, and the chance to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Harassment Claim To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 2020005042 7 In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her sex, disability and/or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. The essence of Complainant’s claim is that the Agency’s requirement that she submit medical documentation for her absences was harassment. Management explained that Complainant was only required to submit supporting medical evidence for unscheduled absences and this requirement was instituted because of Complainant’s call-in history. We note that the record shows that Complainant was absent numerous times within a short period of time, often for several days at a time. We find the issue here is essentially a disagreement between Complainant and a supervisor as to how Complainant’s time and attendance should be monitored. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age). Although Complainant asserts that the Agency acted discriminately, there is insufficient evidence to support the allegation that Complainant’s sex or disability played a role in these incidents. Thus, Complainant’s allegations, even if true, are insufficient to support a claim of discriminatory harassment. Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See generally 29 C.F.R. Part 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). 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. See 29 C.F.R. §§ 1630.2(o) and (p). The Agency does not dispute that Complainant is an individual with a disability. Therefore, the next inquiry is whether Complainant is a “qualified individual with a disability.” 29 C.F.R. §1630.2(m). A “qualified individual with a disability” is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who, with or without reasonable accommodation, can perform the essential functions of such position. Id. 2020005042 8 The Agency also does not assert that Complainant was unable to perform the essential functions of her job. Therefore, the next issue is whether the Agency failed to accommodate Complainant’s disability. Here, both parties acknowledge that Complainant had no work restrictions or limitations and was able to perform her job, except when she suffered an onset of symptoms. Neither the record nor Complainant suggests that the Agency did not allow Complainant to leave work or not report when she was experiencing symptoms or needed medical care. Complainant’s absences were covered by FMLA and the Agency only requested that she provide medical documentation to support any unscheduled absences. We find the Agency’s request to be reasonable. We also find the Agency’s actions in approving disability-related leave requests with medical documentation were sufficient to satisfy its obligation to accommodate Complainant. Disparate Treatment Claim A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Complainant alleged that the Agency treated her disparately and with retaliatory animus in placing her on Emergency Placement. Even if we assume that Complainant established a prima facie case of reprisal, her claim ultimately fails, as we find that the responsible officials articulated legitimate, non-discriminatory reasons for the disputed actions. The Agency witnesses explained that Complainant was placed on Emergency Placement upon advice from OIG officers raising serious concerns about Complainant’s conduct, including allegations that Complainant had taken multiple Kohl’s coupons out of the mail and used them for her personal benefit and had taken postage stamps off customers’ envelopes and local bank meter strips and used them for her personal use. We recognize that Complainant has suggested that the Agency installed cameras and monitored her behavior to catch her doing something that might support her removal. However, given the OIG’s findings, we are persuaded that it was reasonable for the Agency to place Complainant in an off-duty status pending the completion of the investigation to protect the Agency and the public. Therefore, we find Complainant has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus. 2020005042 9 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 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). 2020005042 10 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 December 7, 2020 Date