[Redacted], Charlene L., 1 Complainant,v.Louis DeJoy, Postmaster General, U.S. Postal Service (Great Lakes Area) Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020003253 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlene L.,1 Complainant, v. Louis DeJoy, Postmaster General, U.S. Postal Service (Great Lakes Area) Agency. Appeal No. 2020003253 Agency No. 4J-606-013119 DECISION 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 March 25, 2020 final decision concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Complaints and Inquiry Clerk, PS-07/O, for the Chicago Customer Service District in Chicago, Illinois. On September 27, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (bilateral carpal tunnel, lateral epicondylitis (left), tenosynovitis of hand and wrist (right) and tendonitis (right)), age (59), and in reprisal for prior protected EEO activity when: 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. 2020003253 2 1. Since April 30, 2019 and continuing, she was not accommodated per her medical restrictions when she was denied overtime opportunities; and 2. On a date to be specified, she was denied an award for a “Lead.” The pertinent record reveals the following facts. Complainant reports to the Manager, Consumer and Industry Contact and Retail Manager (female, 57, no disability, no prior EEO (S1). Her second level supervisor is the Retail Manager (female, 45) (S2). Complainant stated her prior protected EEO activity was her April 25, 2019 request to be allowed to work overtime on the Plant Floor, as an accommodation. Claim 1 - Denied Overtime as a Reasonable Accommodation Complainant averred that her medical condition is a permanent condition. The record shows that Complainant has been on restrictions since 2016. Complainant is not able to lift more than five pounds, could not make forceful hand grasps with either hand, could not engage in any repetitious work using her hands, and required a 10-minute break every hour. Complainant claimed that she requested overtime on the Plant Floor as an accommodation on April 25, 2019 and sent another request on May 8, 2019 listing the same restrictions. In her May 8, 2019 submission, her physician stated she could work overtime. The Agency has a procedure in place for employees to request overtime. Two weeks prior to the start of each calendar quarter, full-time regular employees desiring to work overtime during that quarter are required to place their names on an “Overtime Desired” List. In conformance with the Agency’s collective bargaining agreement, the Overtime Desired Lists were established by craft, section, or tour in accordance with the Local Memorandum of Understanding. Employees with the necessary skills whose names are listed are selected in order of seniority for the overtime opportunities. Complainant alleged that there was work available within her restrictions on the Plant Floor. The Supervisor, Distribution Operations, who is not Complainant’s manager, acknowledged that overtime was available in the Plant since April 30, 2019. Complainant’s name was not on the Overtime Desired List for the Plant for Quarter Three or Quarter Four. Investigative File (IF) 244, 245. She signed up for Quarter One in 2020, but she was not listed as an employee of the Plant. IF 246, Complainant says she was on both the Overtime Desired list for Consumer Affairs and the Plant. Consumer Affairs was a separate section. Complainant worked for Consumer Affairs and not the Plant. 92-93, 243-248, 310, 316. The Agency stated that she was only on the Consumer Affairs list and that overtime was provided when the work was available in her craft in the Consumer Affairs section. 2020003253 3 S1 stated that she was not aware of Complainant’s medical condition affecting her ability to perform her work assignment, but she acknowledged that she received the Activity Status Report in April 2016 listing Complainant’s permanent restrictions. S1 testified that Agency management provided Complainant with a reasonable accommodation and has provided overtime within her craft. S1 stated that the only opportunity for overtime in Consumer Affairs was on August 17, 2019, and Complainant was assigned that overtime. S2 also confirmed that Complainant’s name was on the Overtime Desired List for Consumer Affairs, but not for the Plant. IF 150-153, 243- 248. She also said that she made the decision, based on the “best interest of the Postal Service” to deny overtime due to the job duties of the Mail Processing Clerk and Complainant’s permanent restrictions. Management made the decision not to assign overtime outside of her assigned unit. IF 87-89, 154-156. Complainant named two employees who she said were treated more favorably. A male Bulk Mail Technician, with medical conditions, was permitted overtime on the Plant Floor. A younger female, with medical conditions had her hours reduced after she filed an EEO complaint. Complainant also stated that the Agency permitted her to work overtime on the Plant Floor in the past, within her restrictions. The Agency stated that the comparators were not similarly situated, because the male comparator was a Bulk Mail Technician in the Business Mail Entry Unit and was supervised by a different supervisor. The Agency also stated that neither Complainant, nor her other comparator, was on the relevant Overtime Desired list. The Agency averred that it was under no obligation to provide Complainant with an accommodation for any position other than her bid position as a Complaints and Inquiry Clerk. For her assigned position, the Agency provided dictation software, which was purchased in 2016, and has since authorized overtime within her craft. Claim 2 - Denial of Lead Award in 2020 Complainant claimed her manager did not submit her name for a monetary award following her submission of several “leads” that led to additional Agency revenue. Complainant contended that she received three commendations in 2018 and 2019 for similar acts, but not in 2020. Complainant alleged that under the Clerks Care program, managers complete and submit paperwork to the District Manager so that individuals can be recognized for a monetary award for submitting leads to grow revenues for the Postal Service. According to Complainant, her manager told her she did not know how to submit a nomination. Complainant claimed that her manager could have reached out to other managers for help in submitting a nomination for Complainant to receive an award in 2020. IF 79. The record contains the Employee Engagement Program Guidebook. The guidebook notes that no compensation is provided for clerks’ involvement in the Clerks Care program. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 2020003253 4 In the decision, the Agency found that Complainant was not subjected to discrimination or reprisal as alleged. This appeal followed. 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 Under the Rehabilitation Act and the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R.§ 1630.9(a). We will assume arguendo that Complainant is a qualified individual with a disability. Here, the Agency contended that it had provided the needed reasonable accommodation for Complainant to perform the essential functions of her assigned position and that it had granted her overtime within her craft. Complainant claimed that she had previously been allowed to work overtime on the Plant Floor. While Complainant wished to work overtime that may have been available at the Plant, the preponderance of the evidence shows that Complainant was not on the Overtime Desired List for the Plant Floor for the quarters in question and was not otherwise an employee assigned to the Plant Floor. Complainant’s assignment was in the Consumer Services craft, not positions on the Plant Floor and she was therefore not eligible under the collective bargaining agreement to receive overtime for the Plant Floor. Notwithstanding, management officials noted that after reviewing Complainant’s restrictions, it was determined that the type of overtime work performed in the Plant violated her restrictions. As Complainant was allowed to work overtime in her craft when it was available, the Commission finds that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited 2020003253 5 consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. 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. 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. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim (1), as discussed above, Complainant was not on the Overtime Desired List for the Plant as she was assigned to the Consumer Affairs craft and overtime opportunities were granted in accordance with the collective bargaining agreement. As to her denial of an award for a “lead,” S1 affirmed that there was no award process or award available. S1 stated that employee engagement programs are on a voluntary basis and no additional compensation was applicable. S1 added that leads are submitted through the Clerks Care program process or directly to the Business Development Specialists; therefore, she was unaware of any leads Complainant submitted between 2018 and 2019. Ultimately, S1 stressed that employees were not paid additional compensation for leads submitted through the Clerks Care program. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden here. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency's explanations for its actions were pretext intended to mask discriminatory or retaliatory motivation. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Decision. 2020003253 6 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. 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. 2020003253 7 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 June 3, 2021 Date