[Redacted], Cameron M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020004340 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cameron M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020004340 Agency No. 4B-040-0043-19 DECISION On July 27, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 20, 2020 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Complainant worked as a Sales, Services/Distribution Associate, PS-06, at the Post Office in West Rutland, Vermont. On December 17, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of disability (degenerative disc disease, sciatica) when: 1. Since August 27, 2019, Complainant’s request for reasonable accommodation was not granted; 2. Between September 5 and September 10, 2019, Complainant was sent home due to no work available within his restrictions; and 3. Between September 11 and October 17, 2019, Complainant’s work hours were reduced. 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. 2020004340 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. When Complainant failed to respond to the notice within the prescribed 30-day regulatory time frame, the Agency issued a final decision in which it concluded that the evidentiary record was insufficient to support Complainant’s claim of disability discrimination. 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 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”). Denial of Reasonable Accommodation Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dep't. of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). In order to establish that he 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 him with a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation. An individual with a disability is “qualified” if he satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental duties of the employment position that the individual holds or desires. 29 C.F.R. § 1630.2(n). A medical assessment form from a rehabilitation specialist dated September 10, 2019, indicated that Complainant was experiencing back pain due to disc extrusions in the lumbar area and that the anticipated duration of the condition was three to six months. IR 105. Other medical documentation includes a treatment verification form for Wounded Warrior Leave dated May 15, 2019, and a note from Complainant’s physician at the Veterans Affairs (VA) Medical Center dated August 28, 2019. The May 15, 2019 treatment form identified as conditions paralysis of the sciatic nerve and degeneration of the spine at the lumbosacral or cervical regions. 2020004340 3 IR 98-99. The August 28, 2019 note stated that Complainant should avoid work involving bending and lifting greater than 10 pounds, sitting for more than 30 minutes, and standing still for longer than 15 minutes. IR 100. However, the note neither describes Complainant’s condition nor sets forth a diagnosis or prognosis. Assuming that Complainant is a qualified individual with a disability, we next address whether the Agency fulfilled its obligation to provide Complainant with a reasonable accommodation. The Postmaster averred he received the note from the VA doctor on September 4, 2019, and that Complainant suggested that as an accommodation, a training event he was to attend be video recorded rather than him attending the training in person. The Postmaster further stated that he forwarded Complainant’s request along with the doctor’s note to the District Reasonable Accommodation Committee (DRAC) and the Occupational Head Nurse Administrator (OHNA). Complainant himself insisted that he did not need to go before the DRAC and did not participate in the interactive conference that was held on September 24, 2019. The Postmaster notified Complainant in writing that the DRAC had agreed that his work restrictions could be accommodated. The Postmaster also stated that he cancelled the training that Complainant would otherwise have been required to attend. IR 105-09, 116-18, 135-36, 147-48, 152-53. In January 2020, management decided to have the instructor come to Complainant to conduct the training. In addition, as also discussed below, upon receiving the August 28, 2019 medical documentation, the Postmaster instructed Complainant to stay home until the OHNA received clarification regarding his restrictions. Complainant was off work September 5- 7, 2019. When Complainant returned to work on September 11, 2019, he was provided light duty work within his restrictions which included early morning work. Complainant was scheduled between two and five and half hours per day from September 11 - October 12, 2019. As a part-time flexible employee, Complainant was only guaranteed two hours if scheduled under the collective bargaining agreement. Complainant has presented no evidence demonstrating that the provided accommodations were ineffective. Thus, based on the record, we find that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment To prevail on a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with since the Postmaster articulated legitimate and nondiscriminatory reasons for his actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). 2020004340 4 As to sending Complainant home between September 5 and 10, 2019, and reducing his hours between September 11 and October 17, 2019, the Postmaster stated that he had done so out of concern that the work being assigned Complainant had exceeded Complainant’s medical restrictions, and that he had been working with the OHNA trying to get clarification on the extent to which Complainant’s restrictions were impacting his ability to do his job. The Postmaster further asserted that Complainant had previously scheduled leave for September 9 and September 10, 2019, and was not scheduled to work on September 8, 2019. In addition, the Postmaster stated that he worked in consultation with the Post Office Operations Manager and a Labor Relations Specialist. IR 122-26, 130-32, 141. Ultimately, Complainant’s schedule changed to provide him available work within his restrictions. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). Beyond his own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which contradict or undercut the Postmaster’s explanations for taking Complainant off the schedule and reducing his hours. Likewise, Complainant has not presented any evidence that would cause us to question the Postmaster’s truthfulness as a witness. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented, and the weight of that evidence is insufficient to establish the existence of an unlawful motive on the part of the Postmaster. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to 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. 2020004340 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. 2020004340 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 November 4, 2021 Date