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

Equal Employment Opportunity Commission

Aug 19, 2021

Appeal No. 2021003710 (E.E.O.C. Aug. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brian F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021003710 Agency No. 4G-390-0031-19 DECISION On June 1, 2021, Complainant’s estate2 filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 10, 2021 final decision concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Manager, Customer Services, at the Agency’s North Station in Jackson, Mississippi. On January 15, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to harassment/a hostile work environment based on disability and in reprisal for prior protected activity when, since November 8, 2018: 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 The record reflects that Complainant died on August 21, 2020. 2021003710 2 1. he was required to work in excess of eight hours per day which he believed were beyond his work restrictions, and/or provided duties which he believed were outside his medical restrictions; 2. he was contacted during his dialysis sessions; 3. he was not been permitted to take lunch; 4. his work schedule was changed; 5. he was not been granted sufficient leave to make his scheduled dialysis appointments; 6. the Postmaster disclosed his medical condition to others; and 7. on November 22, 2018, he was scheduled for an investigative interview. The Agency accepted the complaint and conducted an investigation. The record reflects that during the investigation, Complainant did not submit an affidavit. However, Complainant identified his disabilities as kidney failure; congestive heart failure; a foot and ankle injury; back injury; diabetes; sleep apnea; and an eye problem. Following 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 EEOC Administrative Judge (AJ). Complainant’s estate timely requested a hearing, but subsequently withdrew its request on January 25, 2021. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The instant appeal followed. ANALYSIS AND FINDINGS Denial of Reasonable Accommodation: Claims 1, 4, 5, and 6 Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is an individual with a disability. Here, Complainant claimed that he was denied reasonable accommodation during the relevant period. Specifically, Complainant claimed that the claimed that he has been required to work in excess of eight hours per day which he believes was beyond his work restrictions. However, the Postmaster denied this claim. 2021003710 3 She noted that she never instructed or demanded Complainant to work in excess of eight hours per day. Regarding Complainant’s allegation that his work schedule has been changed, the Postmaster explained that she changed Complainant’s work schedule to accommodate his need to leave for his dialysis and his restriction of only working eight hours. She also noted that Complainant’s tasks did not violate his restrictions and that she has never seen Complainant lifting packages. With respect to Complainant’s allegation that he has not been granted sufficient leave to make his scheduled dialysis appointments, the Postmaster stated she did not deny Complainant’s leave. She noted that Complainant was an exempt employee and has to take leave increments of eight hours. The Postmaster also noted that she did not receive any requests for leave from Complainant to attend his dialysis appointments. Finally, the Postmaster noted that Complainant claimed that she disclosed his medical condition to others, she denied this claim. Specifically, the Postmaster noted that she did not disclose Complainant’s medical condition to others “because I truly do not know his condition. I did communicate that I had changed his schedule to accommodate him to be able to go to the doctor to the District Manager during a meeting in which he was present.” She acknowledged letting her supervisor know that Complainant needed an accommodation to the doctor because her supervisor was asking why Complainant was not in the office in the afternoon. In addition, the Postmaster noted that Complainant had disclosed his medical condition to others because she heard his co-workers made comments about him being sick. In sum, there was no evidence proffered by Complainant or his estate that contradicted the testimony of the Postmaster. As such, there is no support for a finding that the Agency violated the Rehabilitation Act. Harassment: Allegations 2, 3 and 7 To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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). To prove his harassment claim, Complainant must establish that he 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, his disability or prior EEO activity. 2021003710 4 Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Regarding allegation 2, the Postmaster explained that she became aware of Complainant’s dialysis session sometime in October 2018 when his supervisor went out on leave and Complainant had to assist the remaining supervisors. The Postmaster further stated that she changed one supervisor’s schedule so she could be the late/closing manager because Complainant could not close due to his appointments. The Postmaster acknowledged that on one evening she called Complainant once during a dialysis session. She noted that she apologized to Complainant and hung up immediately. Regarding allegation 3, that he has not been permitted to take lunch and his work schedule has been changed, the Postmaster asserted that she “never suggested nor have I instructed Complainant to not take a lunch.” There is no other evidence supporting Complainant’s allegations on claim 3 With respect to Complainant’s allegation 7 that on November 22, 2018, he was scheduled for an investigative interview, the Postmaster stated that the interview related to his performance issues. She stated, however, Complainant had not reported to work since he was informed an investigative interview was being scheduled and it never occurred. Even if we were to consider the three allegations discussed above with Complainant’s reasonable accommodation claims, there is simply no evidence supporting a conclusion that any of the disputed actions were motivated by discriminatory or retaliatory animus. CONCLUSION After a review of the record in its entirety, including consideration of all statements on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021003710 5 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. 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. 2021003710 6 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 19, 2021 Date