[Redacted], Anton S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jul 28, 2021

Appeal No. 2020001508 (E.E.O.C. Jul. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anton S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020001508 Agency No. 4C-450-0081-19 DECISION On December 3, 2019, 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 November 7, 2019, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented on appeal is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race, sex, disability, age, and/or reprisal. 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. 2020001508 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Sharonville Post Office in Cincinnati, Ohio. Complainant’s first-line supervisor was a Supervisor, Customer Service (S1), and his second-line supervisor was a Manager, Customer Service (S2). Complainant is African-American, male, and was born in August 1962. Complainant stated that he had filed previous EEO complaints and that management was aware of his protected activity. Complainant described his disability as a back condition, diagnosed as degenerative disc disease and lumbar disk disease, and hip pain, resulting in bilateral hip replacements. Complainant averred that he began having back and hip problems after he was rear-ended while driving a mail truck in 1995. Since 2016, Complainant was working a limited duty assignment with the following medical restrictions: no more than eight to 10 hours of work per day; intermittent steps and walking, with the amount of walking depending on pain level; may need more breaks during the workday. On June 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (physical), age (born in August 1962), and reprisal for prior protected EEO activity (prior EEO complaints) when: 1. Management denied Complainant assistance, tried to make him work outside of his medical restrictions, and talked about his restrictions on the workroom floor; 2. Management overly supervised Complainant on his route; and 3. A manager pulled Complainant’s hat over his eyes. The Agency dismissed allegation (2) for failure to state a claim, and the Agency dismissed allegation (3) for stating the same claim as in a separate EEO complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. Neither Complainant nor the Agency submitted a statement on 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, 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 2020001508 3 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”). As a preliminary matter, we consider the Agency’s partial dismissals. The Agency dismissed allegation (3) for stating the same claim as another EEO complaint. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Upon review, Complainant raised the same issue in Agency No. 4C-450-0034-19, and Complainant signed a withdrawal regarding this matter on March 21, 2019. We find that the Agency properly dismissed allegation (3) for stating the same claim as another EEO complaint. The Agency dismissed allegation (2) for failure to state a claim, reasoning that an allegation that management overly supervised Complainant on his route did not relate to a harm or loss related to a term, condition, or privilege of employment. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 1614.106(a). The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Under the Commission's broad view of reprisal, any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter Complainant or others from engaging in protected activity, states a claim. See Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999); EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016). Recognizing that Complainant raised reprisal as a basis, the Agency found that, even giving Complainant “every benefit of the doubt,” he did not allege “a scenario that would deter a reasonable person from engaging in protected activity.” Report of Investigation (ROI) at 35. We disagree. Management subjecting the work of an employee who had filed an EEO complaint to extra scrutiny, based on a retaliatory motive, is reasonably likely to deter a reasonable person from engaging in protected activity. Accordingly, the Agency erred in dismissing this allegation for failure to state a claim. However, Complainant discussed this allegation in his investigative affidavit, and we find that the record is sufficiently developed to address it as part of Complainant’s hostile work environment claim. 2020001508 4 Denial of Reasonable Accommodation Complainant alleged that he was denied a reasonable accommodation when he was asked to deliver extra parcels on his assigned route, when he was asked to deliver on other routes, and when he was denied assistance. Specifically, Complainant averred that, on December 4, 2018, S1 asked him if he could do an additional hour on another route even though Complainant told him that he could not because he had too many parcels on his own route. Complainant stated that, on December 6, 2018, when he told S1 that he could not complete an extra 30 minutes of deliveries on another route because he was in pain, S1 told him he would have to do the extra 30 minutes anyway. Complainant averred that, on December 8, 2018, S2 told Complainant to tell S1 that he could not do an additional 30 minutes on his route because of his pain level. Complainant stated that, on December 8, 2018, he was still in pain from working extra time on December 7, 2018. Complainant alleged that, on December 8, 2018, S1 disregarded that Complainant said he was hurting, telling him he had to do the additional 30 minutes and that if Complainant brought it back up, he would write him up. According to S1, Complainant never worked outside of his restrictions. S1 averred that, if Complainant told him that he could not complete something because of his medical restrictions, the work would be taken away from Complainant. S1 stated that he asked Complainant about the extra work on December 4, 2018, because Complainant is on the overtime desired list. According to S1, Complainant worked 10 hours on December 4, 2018, all on his own route. S1 averred that Complainant worked 9.59 hours on December 6, 2018, and he denied that Complainant told him that he could not do the extra 30 minutes because he was in pain. S1 indicated that the extra 30 minutes was assigned to Complainant on December 8, 2018, before Complainant got to work, and he stated that Complainant did not complete the extra 30 minutes. S1 denied telling Complainant that he would write him up if he did not complete the extra 30 minutes, and he stated that he took the extra 30 minutes away from Complainant because he expressed that he was in pain. S2 averred that he did not recall Complainant stating that he could not complete extra work on December 8, 2018, because he was still in pain from completing extra work the day before. S2 stated that, on December 7, 2018, he assigned extra work to 12 employees, including Complainant, and, on December 8, 2018, he assigned extra work to nine employees, including Complainant. S2 denied assigning Complainant work outside of his restrictions. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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). “The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds 2020001508 5 or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). Upon review, we do not find that Complainant has established by preponderant evidence that he was denied a reasonable accommodation for his disability. Although Complainant objected to S1 and S2 assigning him extra work or asking him if he could complete extra work, Complainant did not exceed 10 hours of work on the days in question. The record also reflects that Complainant was on the overtime list, so management offered Complainant extra work to ensure equitable overtime assignments. Moreover, although Complainant referenced being in pain on some occasions, there is no indication in the record that he requested additional breaks or any additional accommodation for his disability during this timeframe. Therefore, the preponderance of the evidence in the record does not establish that the Agency denied Complainant a reasonable accommodation. Disclosure of Confidential Medical Information Complainant alleged that management disclosed his confidential medical information. According to Complainant, on December 3, 2018, he told S1 that he had a physical therapy appointment on Mondays and Thursdays. Complainant averred that, while standing on the workroom floor, S1 said that he “did not have to cater to me because it’s not an on-the-job injury.” ROI at 71. Complainant added that, on several occasions, S1 discussed his medical restrictions on the workroom floor. S1 stated that, although Complainant would sometimes bring up his medical restrictions, he never discussed Complainant’s medical restrictions on the workroom floor. S1 denied telling Complainant that he did not have to cater to him because he did not have an on- the-job injury, adding that Complainant was allowed to attend medical appointments as needed. The Commission's regulations implementing the Rehabilitation Act also provide for the confidentiality of medical information. Specifically, 29 C.F.R. § 1630.14(c)(1) provides, in pertinent part, that: “Information obtained... regarding the medical condition or history of any employee shall ... be treated as a confidential medical record, except that: (i) [s]upervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodation.” By its terms, this requirement applies to confidential medical information obtained from “any employee,” and is not limited to individuals with disabilities. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (April 13, 2000). Although not all medically-related information falls within this provision, documentation or information of an individual's diagnosis is without question medical information that must be treated as confidential except in those circumstances described in 29 C.F.R. Part 1630. Complainant alleged that S1 discussed his medical restrictions on the workroom floor and that S1 told him that he did not have to “cater to” Complainant’s therapy schedule based on the nature of his injury. However, S1 denied both allegations. Without any additional supporting evidence, Complainant has not met his burden of establishing, by preponderant evidence, that the Agency disclosed his confidential medical information in violation of the Rehabilitation Act. 2020001508 6 Hostile Work Environment In addition to the allegations discussed in the context of denial of a reasonable accommodation, Complainant alleged that S1 told him, “A younger person can do your route quicker than you.” ROI at 112. S1 denied making this statement to Complainant. Complainant stated that another Carrier (C1) heard S1 make this statement to Complainant. According to C1, he heard S1 refer to Complainant’s route a few times as an “auxiliary route,” and he also heard S1 say that Complainant’s “route could be delivered faster by other employees.” ROI at 185. Complainant also averred that he was subjected to extra supervisory oversight, and he identified a white female Carrier with a disability (C2) as someone who was treated more favorably with respect to receiving help on her route and not being subjected to the same level of intense supervision. Complainant alleged that S1 told him that C2 worked better than Complainant did. S1 denied treating C2 more favorably than Complainant, and he noted that C2 did not have any medical restrictions. S1 averred that C2’s route was more than nine hours long, so he would frequently take time off C2’s route to ensure equitable overtime. According to Complainant, on March 22, 2019, a Supervisor (S3) was evaluating routes. Complainant stated that he told S3 that he would prefer that S3 did not walk with him on his route and that S3 responded that he would be walking with everyone. 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). Regarding Complainant’s allegation that S1 harassed him based on age, S1 denied telling Complainant that a younger employee could deliver his route faster than he did. C1, who Complainant cited as a witness, stated that he heard S1 refer to Complainant’s route as an auxiliary route and that another employee could deliver the route faster than Complainant did, but C1 did not state that S1 referred to Complainant’s age or to his membership in any protected class. Accordingly, Complainant has not established that this alleged harassment was based on age or any other protected basis. 2020001508 7 Complainant alleged that C2 was treated more favorably than he was because she received more assistance on her route than he did. However, S1 and S2 both indicated that C2’s route was over nine hours long, so they needed to keep C2’s overtime down in order to ensure equitability for the overtime list. Complainant has not established by preponderant evidence that the Agency’s real reason for providing assistance to C2 and not to Complainant was his race, sex, disability, age, and/or prior protected activity. Therefore, Complainant has not established that this alleged harassment was discriminatory. Finally, Complainant alleged that he was singled out for excess scrutiny, particularly when S3 walked his route with him, even after Complainant told S3 that his route had already been evaluated and that he would prefer that S3 not join him. However, the record reflects that S3 planned to evaluate all of the routes at the Sharonville Post Office, not just Complainant’s route. We find that Complainant has not established that this alleged harassment was based on his membership in any protected class. 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 finding no discrimination. 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 2020001508 8 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. 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. 2020001508 9 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 July 28, 2021 Date