[Redacted], Candice B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 8, 2021Appeal No. 2021001853 (E.E.O.C. Mar. 8, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Candice B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001853 Hearing No. 420-2020-00312X Agency No. 1G-321-0029-20 DECISION On January 13, 2021, 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 December 1, 2020, final decision concerning an 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Mail Handler/Processing Clerk at the Agency’s Processing and Distribution Center in Pensacola, Florida. Believing that she was subjected to unlawful discrimination, Complainant contacted an EEO Counselor on January 17, 2020. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on May 1, 2020, Complainant filed a formal complaint based on disability and in reprisal for prior protected EEO activity (Case No. 1G-321-0057-18). 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. 2021001853 2 The Agency framed the claims as follows: 1. On November 30, 2019, Complainant was only allowed to work 2:10 hours of overtime instead of 4 hours. 2. On December 1, 2019; December 2, 2019; and December 22, 2019 Complainant was not allowed to work a full (4) hours of overtime. 3. On December 12, 2019, management would not allow Complainant to work on her day off. 4. On December 17, 2019, Complainant was asked to sign an updated PS Form 2499, Limited Duty Offer, changing her hours. On May 12, 2020, the Agency accepted two claims for investigation and dismissed the other two claims. Specifically, the Agency dismissed claim (1) for untimely EEO Counselor contact. The Agency stated that Complainant’s January 17, 2020 contact was two days after the forty-five day time limit. Further, the Agency noted that EEO posters were on display, describing the time limit, and Complainant had previously engaged in EEO activity. The Agency dismissed claim (4) for failure to state a claim. According to Complainant, management threatened that if she did not sign the form immediately she would not be able to return to work. However, the Agency reasoned that since the record shows Complainant’s hours were never changed, she did not suffer an actionable harm. During the investigation of claims (2) and (3), the EEO investigator sent a request for an affidavit to both Complainant and her attorney. While receipt of the request was confirmed by both parties, an affidavit was never provided. The investigation proceeded with the information provided by Complainant during counseling and in her formal complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the 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 but subsequently withdrew her request. Consequently, the AJ remanded the case to the Agency for a final decision pursuant to 29 C.F.R. § 1614.110(b). In its December 1, 2020 decision, the Agency found no discrimination regarding claims (2) and (3). The Agency also incorporated by reference, its earlier dismissal of claims (1) and (4). Regarding the basis of disability, citing an affidavit by Complainant’s supervisor (hereinafter “Supervisor”) describing Complainant’s limitations, the Agency “deemed” Complainant to be substantially limited and having established a prima facie case. Regarding the basis of reprisal, however, the Agency found that while Complainant established the first three elements of a prima facie case, she did not show a link between her prior activity and the December 2019 incidents. Moreover, the Agency found that the comparators named by Complainant were able to perform any tasks in Automation and work in the “outgoing bullpen”, and therefore we not similarly situated. 2021001853 3 Regarding the articulated legitimate, non-discriminatory reasons for not assigning Complainant more overtime, the Agency pointed to Complainant’s inability to work in Automation and the lack of available work. Finally, the Agency concluded that Complainant did not provide any evidence of pretext. Complainant filed the instant appeal. She did not submit a statement or brief. ANALYSIS AND FINDINGS Standard of Review 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”). Claims (1) and (4) EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Complainant contends that on November 30, 2019, she was only granted 2:10 hours of overtime (claim (1)). The EEO Counselor’s Report states she initiated contact on January 17, 2020. Because Complainant’s contact was beyond the forty-five day time limitation and she has not provided any reason for the delay, we find the Agency’s dismissal was proper. 2 2 In a written response to the Agency’s Partial Acceptance/Dismissal Letter, Complainant’s attorney argued that the claim was part of a continuing pattern of discrimination and therefore should be considered timely raised with an EEO Counselor. We determine, however, that claim (1) describes a discrete action occurring on a particular date. 2021001853 4 As defined by the Agency, in claim (4) Complainant was asked to sign an updated Limited Duty Form that changed her work hours. 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, .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). With respect to the basis of disability, the Agency was correct in concluding that the alleged incident did not render Complainant an “aggrieved” employee. The event did not result in a present harm or loss. However, the Agency is reminded that allegations of reprisal are considered with a broad view of coverage. See Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claims of retaliation are not limited to those that affect a term or condition of employment, but rather, any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. In the attachment to her formal complaint, Complainant more fully describes the December 17, 2019 incident. According to Complainant, when she was asked to immediately sign a form changing her schedule, she objected and told Supervisor that he must provide her with 7 to 10 days to accept. In response, “[Supervisor] then snatched the Form 2499 out of [Complainant’s] hand.” We find under these circumstances, where the supervisor withdrew the form and no other action was taken, such action is not reasonably likely to have deterred an individual from using the EEO process. The Agency’s dismissal of claim (4) was therefore proper. Claims (2) and (3) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 2021001853 5 In the instant case, Complainant alleges that she was not permitted to work the allowable hours of overtime, even though she was on the Overtime Desired List. Complainant contends that, even though work was available within her medical restrictions which could have been assigned to her, she was sent home. She contends that employees without EEO activity were given up to twelve hours of overtime, and that her disability was a factor in not providing her with more overtime. As noted above, Complainant did not provide an affidavit to the EEO Investigator. Further, Complainant has not submitted a statement on appeal. In addressing her claims, Supervisor explained that although Complainant was assigned to Automation, due to her limitations she worked in Manual Letters. He also described many of her medical restrictions, including the following: a ten-pound lifting restriction, no more than 30 minutes of walking per shift, no bending, no kneeling, no climbing, no twisting, no pushing or pulling. Her shoulder was in a sling and she used a chair when casing letters. Complainant does not challenge Supervisor’s assertion that her medical limitations required her to work in Manual Letters instead of Automation. The record reflects that she was on the Overtime Desired List for Automation. In explaining why the comparators named by Complainant were given additional hours of work in Automation, Supervisor attested that they were able to perform all the tasks in Automation. Further, Supervisor explained that the criterion used when deciding whether to grant an individual work on their day off, was simply whether there was work available. Based on the instant record, we do not find that Complainant has met her burden in showing that the Agency’s decision no to provide her with additional overtime was motivated by discriminatory animus directed towards her disability or prior EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, 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. 2021001853 6 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. 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. 2021001853 7 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 March 8, 2021 Date Copy with citationCopy as parenthetical citation