[Redacted], Chad G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionFeb 23, 2022Appeal No. 2020001573 (E.E.O.C. Feb. 23, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chad G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Request No. 2021005006 Appeal No. 2020001573 Hearing No. 480-2018-00422X Agency Nos. 4F-900-0231-17, 4F-900-0076-19 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Chad G. v. U.S. Postal Service, EEOC Appeal No. 2020001573 (Sept. 9, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the period at issue, Complainant worked as a City Carrier, Q-01, at the Agency’s Wagner Station in Los Angeles, California. 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. 2021005006 2 The record indicates that Complainant filed two formal EEO complaints on July 31, 2017 (Agency No. 4F-900-0231-17) and March 5, 2019 (Agency No. 4F-900-0076-19). The complaints consisted of the following matters: Complaint 1 - Agency No. 4F-900-0231-17 (Hearing No. 480-2018-00422X) Complainant claimed that the Agency discriminated against him and subjected him to a hostile work environment based on race (Asian), national origin (South Korean), sex (male), disability (bilateral plantar fasciitis), and in reprisal for prior protected EEO activity when: 1. on April 24, 2017, after Complainant had already been approved for overtime, he was the only carrier that management instructed to rush his return to office duties and to clock out; 2. on April 26, 2017 and other dates, Complainant was subjected to a hostile work environment when management constantly kept him under observation, admonished him without just cause, denied his request for PS Forms 3996 and otherwise harassed him; 3. on April 26, 2017, Complainant was counseled for missing a Management Service Point (MSP) scan point that was not placed at the address in question until a week later; 4. on April 29, 2017, Complainant requested his copy of a routing observation from January 20, 2017, but his supervisor (S1) did not provide him with a copy; 5. on April 29, 2017, and other dates, Complainant was instructed not to pull or work on his parcel hamper until after he pulled down his mail; 6. on May 1, 2017, Complainant had to check with S1 about the status of leave request for May 2, 2017 because a week had passed since he submitted it with no response from management; 7. on May 3, 2017, Complainant was ordered to change his restroom break to a location other than the station; 8. on May 17, 2017, Complainant was issued a “verbal warning” for returning to the office with mail on May 13, 2017; 9. on June 3, 2017, Complainant was issued a Letter of Warning; 10. on June 22, 2017, S1 followed Complainant on his route in her personal vehicle during a street observation; 11. on June 23, 2017, when Complainant requested leave for July 3-9, 2017, S1 told him there was no opening for leave that week, even though the dates were open; 2021005006 3 12. on June 24, 2017, S1 told Complainant that he was not entitled to the number of breaks that were listed in his medical restrictions; 13. on July 1, 2017, Complainant was given an Investigative Interview for a missed scan on June 29, 2017, and subsequently was issued a Notice of 7-Day Suspension; 14. on October 23, 2017, Complainant was subjected to street observation without notifications; 15. on July 10, 2017, S1 instructed him to pull down his mail as soon as all the mail was finalized at the Hot Case and to submit his PS Form 3996 to her despite there being no regulation or rule supporting her instruction; 16. on July 22, 2017, Complainant was instructed not to speak to the Safety Captain about a safety issue involving a dog problem on his route; 17. on July 26, 2017, Complainant was ordered to return to the street to deliver mail in violation of his 8-hour work restriction; 18. on August 14, 2017, the manger (M1) threatened Complainant with an “evaluation of your performance;” 19. on or about August 19, 2017, the M1 failed to properly address a dog issue on his route; 20. on August 22, 2017, and other dates, management did not provide Complainant with sufficient time to conduct union business and otherwise interfered with his duties as a union steward; 21. on September 12, 2017, management refused to sign Complainant’s PS Form 1571 when he brought mail back to the station and made disparaging comments to him; 22. on December 4, 2017, S1 instructed Complainant to return to the street in violation of his medical restrictions, to deliver mail that he brought back to the station, and later screamed, “Failure to Follow Instructions” at him when she saw he was still in the station; 23. on December 5, 2017, M1 instructed Complainant to take his breaks every hour on the hour per the terms of his limited-duty job offer, and refused his request for clarification of the instruction; and 24. on December 5, 2017, management walked Complainant’s route with him despite having done so several times in the recent past, and then failed to provide him with a copy of the street observation. 2021005006 4 Complaint 2 - Agency No. 4F-900-0076-19 (Hearing No. 480-2019-00767X) Complainant claimed that he was discriminated against and subject to discriminatory harassment based on disability and in reprisal for prior protected EEO activity2 when: 1. on December 8, 2018, Complainant was denied a reasonable accommodation when he notified management that he could no longer return to the Station to use the restroom; 2. on December 20, 2018, management had a City Carrier Assistant (CCA) pull down Complainant’s case while he was on break; 3. on January 15, 2019, and January 18, 2019, Complainant was told there was no work available and was sent home early; and 4. on January 24, 2019, Complainant was asked if he clocked over to Union time when he was observed talking to the Union Steward. Following an investigation into the complaints, Complainant requested a hearing before an EEO Administrative Judge (AJ) for each complaint. However, the AJ submitted notices of intent to issue a decision by summary judgment without a hearing, for each complaint, in favor of the Agency.3 After receiving responses from Complainant, the AJ consolidated both complaints and issued a December 13, 2019 summary judgment decision in favor of the Agency.4 On December 19, 2019, the Agency issued a final order implementing the AJ’s finding of no discrimination for each complaint. We note that our prior decision in Appeal 2020001573 only reviewed and analyzed one complaint, Agency No. 4F-900-0231-17. Therefore, we limit Complainant’s request for reconsideration to this complaint. Consequently, Complainant’s other complaint, Agency No. 4F-900-0076-19, has not been reviewed by the Commission on appeal. 2 The record supports that Complainant filed a prior EEO complaint where he identified S1 as the same responsible management official as identified in the instant complaint. Complainant testified that he raised reprisal as a basis for invoking his Weingarten rights on December 8, 2018. 3 The record only includes the AJ’s December 5, 2019 notice of intent to issue a summary judgment decision in favor of the Agency for Agency No. 4F-900-0231-17. However, the record contains both of Complainant’s responses to the AJ’s notices of intent. 4 The AJ incorporated by reference his notices of intent to issue a summary judgment decision in his final decision finding on no discrimination in either complaint. 2021005006 5 Therefore, we construe Complainant’s appeal regarding Agency No. 4F-900-0076-19 as an appeal of the Agency’s final order implementing the AJ’s finding of no discrimination. We discuss this complaint on the merits more fully in our discussion below. Request for Reconsideration (Agency No. 4F-900-0231-17) Our prior decision in Appeal 2020001573 found that the AJ properly determined that the record failed to support that Complainant had been discriminated or retaliated against or subjected to a hostile work environment as alleged. Specifically, the AJ incorporated by reference his notice of intent to issue a summary judgment decision in favor of the Agency regarding the instant complaint. Specifically, the AJ determined that Complainant had difficulty completing his route even after receiving assistance; a supervisor was unaware that another supervisor had approved Complainant to work overtime; management requested that Complainant use restroom facilities closer to his route instead of returning to the station for his bathroom breaks; Complainant had requested leave that had been reserved by another employee, but when the employee stopping working at the facility, Complainant was able to take the previously reserved leave after going through the leave bidding process; management ultimately addressed Complainant’s concerns regarding a dog on his route; Complainant delivered mail within his work restriction; Complainant’s limited duty job offer required that he take breaks every hour on the hour; and Complainant was issued a suspension based on his work performance. In the instant request for reconsideration, Complainant submits a statement expressing disagreement with the appellate decision and reiterating arguments previously made on appeal. However, we emphasize that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020001573 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021005006 6 Initial Appellate Review on the Merits of Agency No. 4F-900-0076-19 The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Claim 1: Reasonable Accommodation Request (Agency No. 4F-900-0076-19) 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. 29 C.F.R. §§ 1630.2(o) and (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he 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 him with a reasonable accommodation. See 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). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. It is undisputed that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. Complainant stated that he has bilateral plantar fasciitis, a lumbar injury, and a left calf injury he sustained on November 7, 2014,5 while working for the Agency. Thereafter, Complainant returned to work on November 20, 2018 with a few work restrictions. 5 A copy of Complainant’s duty status report indicates that he sustained a work-related injury on October 7, 2014. 2021005006 7 Specifically, Complainant’s work restrictions included wearing comfortable shoes, working no longer than eight and a half hours a day, and taking a 15-minute break every hour. Complainant further stated that since January 2019, he was diagnosed with post-traumatic stress disorder (PTSD) related to his prior military service. However, Complainant explained that he is able to perform all of his work duties with reasonable accommodations. Our review of the record supports that the AJ correctly determined that the record failed to support that the Agency violated the Rehabilitation Act. Complainant claimed that his supervisor (S1) denied him a reasonable accommodation when she prevented him from returning to the station to use the restroom. Complainant acknowledged that he had previously asked his prior supervisor to use the station restroom due to a medical condition he sustained during his military service. However, S1 testified that Complainant never requested, verbally or in writing, to use the station bathroom as an accommodation, and there was no medical documentation indicating a need for a restroom accommodation. S1 explained that she instructed Complainant to use the closest restrooms on his route instead of returning to the station as it is Agency policy to take restroom breaks at locations on or near the employee’s route. S1 noted that Complainant had five restroom locations near his route while the station was a ten-minute drive each way to and from Complainant’s route. Our review of the record fails to indicate that Complainant requested using the station restroom as an accommodation. We note that Complainant has not asserted that he made a request to S1, his current supervisor. Additionally, Complainant’s November 20, 2018 duty status report fails to include station restroom stops as a work restriction. Therefore, we conclude that the evidence of record fully supports the AJ’s determination that Complainant has not established a violation of the Rehabilitation Act. Claims 2-4: Disparate Treatment (Agency No. 4F-900-0076-19) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Construction 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 Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2021005006 8 Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). As previously discussed, Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act. Our review of the record supports that the AJ properly determined that the responsible Agency officials provided legitimate, non-discriminatory reasons for the disputed actions. Claim 2 (Pulling Down Complainant’s Case) S1 acknowledged that she was the management official who instructed a City Carrier Assistant (CCA) to pull down Complainant’s case work while Complainant was on break. S1 explained that the CCA did not have any work assignments and she assigned him work so that he could be gainfully employed. S1 admitted that Complainant believed that she was taking work away from him when she assigned work to the CCA, however, S1 explained that there was still work for Complainant to complete after he returned from his break. Claim 3 (Sending Complainant Home) S1 testified that she sent Complainant home after he informed her that he needed seven hours to complete his five-hour route. Consequently, Complainant’s need for assistant was longer than his work assignment. Claim 4 (Union Time) Complainant’s manager (M1) acknowledged that he would have asked Complainant if he was on union time if M1 had observed Complainant speaking with the union steward. M1 indicated that it is Agency procedure for an employee to officially request union time when they are conducting union business, and at the time, M1 was unsure whether Complainant was discussing union business. In this case, M1 stated that Complainant informed him that he was not conducting union business, rather, he was just talking to the union steward for a quick meeting. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s disability, or reprisal for prior protected EEO activity. 2021005006 9 Therefore, we find that the AJ’s issuance of a decision by summary judgment in favor of the Agency was appropriate and a preponderance of the record evidence does not establish that discrimination or unlawful retaliation occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. Because we reviewed this complaint, Agency No. 4F-900-0076-19, on the merits for the first time on appeal, we note that Complainant has appeal rights and may request reconsideration of our decision on this complaint. CONCLUSION We deny Complainant’s request for reconsideration regarding Agency No. 4F-900-0231-17 and determine that the decision in EEOC Appeal No. 2020003693, with respect to this complaint, remains the Commission's decision. However, because our prior decision did not address or analyze Agency No. 4F-900-0076-19, we have adjudicated Complainant’s appeal on that complaint for the first time on its merits. As such, Complainant will be provided the right to request reconsideration of our decision on this complaint only. Below we detail separate rights for each complaint. STATEMENT OF RIGHTS FOR AGENCY NO. 4F-900-0231-17 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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). 2021005006 10 STATEMENT OF RIGHTS FOR AGENCY NO. 4F-900-0076-19 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 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). 2021005006 11 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 February 23, 2022 Date Copy with citationCopy as parenthetical citation