[Redacted], Chau O., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Feb 2, 2022

Appeal No. 2021000211 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chau O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021000211 Hearing Nos. 480-2019-00596X 480-2020-00065X Agency Nos. 4F-926-0019-19 4F-926-0090-19 DECISION The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 13, 2020 final action concerning the two formal complaints which claimed unlawful 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 Letter Carrier at the Agency’s La Verne Post Office in La Verne, 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. 2021000211 2 Complaint 1 - Agency No. 4F-926-0019-19 Complainant claimed that she was subjected to discriminatory harassment based on disability and in reprisal for prior protected EEO activity when: 1. On October 15, 20, 27 and 30, 2018, and December 3 and 28, 2018, her supervisor told her that she is supposed to deliver all her mail in 8 hours and that the 3rd bundle did not count. 2. Between August 6 and October 25, 2018, she has been given assignments that were outside her medical restrictions. 3. From October 15, 2018 and ongoing, the Agency has failed to accommodate her. Disability. 4. On a continuous basis she was followed inside the office. 5. On November 3, 2018 and January 12, 2019, she was not given PS Form 4584 when observed. Complaint 2 - Agency No. 4F-926-0090-19 The second formal complaint alleged that Complainant was discriminated against based on disability and in reprisal for prior protected EEO activity when: 6. On April 4, 2019, she was issued a Letter of Warning. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ subsequently issued a decision by summary judgment finding no discrimination. The AJ used a three-analysis: reasonable accommodation, disparate treatment, and harassment, which we will discuss separately, below. The Agency issued its final action adopting the AJ’s finding of no discrimination. The instant appeal followed. 2021000211 3 ANALYSIS AND FINDINGS Reasonable Accommodation 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. On June 24, 2014, Complainant submitted a Form CA-2 (workers’ compensation form), indicating that she had suffered from work-related injuries on her right shoulder, right elbow, and left knee. The Department of Labor’s Office of Workers’ Compensation Program (“OWPC”) accepted Complainant’s Form CA-2. Thereafter, Agency management offered Complainant a Limited Duty assignment based on Complainant’s medical restrictions. Complainant accepted this Limited Duty assignment offer on August 13, 2014. The Acting Supervisor, Customer Services was aware of Complainant’s medical restrictions, which required her to be accommodated with the following restrictions: • Case routes with platform for 8 hours daily; • Load vehicle with parcels and mail for no more than 20 pounds; • Walking on paved areas; • Pushing/pulling up to 100 pounds with wheels; • Put trays upside down in hamper; • Use hip satchel; and • Maximum daily is 8 hours During the EEO investigation, Complainant provided little additional detail about her impairment(s). Regarding her right shoulder, Complainant offers she has inflammation/limited movement (“arthropathy”) of the “bursae” (the fluid-filled sac that cushions the bones, tendons and muscle near her shoulder joint). When asked in her affidavit what limitations resulted from her condition, Complainant merely stated “same as it was listed on the CA-17.” Beyond this, there is other evidence other than the CA-17s, which would demonstrate the specific extent of Complainant’s limitations. Agency management tried to engage Complainant by inviting her to participate in a District Reasonable Accommodation Committee. However, Complainant did not update her mailing address and the invitations were first sent to her old address of record. There is no evidence in the record that Complainant followed up once the letters finally reached her. Therefore, beyond providing her with a limited duty assignment as a result of her accepted workers’ compensation claim, the AJ concluded that “by deliberately ending the interactive process, Complainant waives her entitlement to accommodation. Her ensuing failure to accommodate claim must fail.” 2021000211 4 In sum, based on the undisputed evidence of record, the AJ correctly determined that Agency management did not deny Complainant a requested reasonable accommodation or otherwise failed to accommodate Complainant within her documented medical restrictions pursuant to its obligations under the Rehabilitation Act. If she sought an accommodation beyond her limited duty assignment, Complainant never communicated that to the Agency. Disparate Treatment 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 a 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 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, non-discriminatory 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. Where, as here, 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). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions relating to disparate treatment. The Supervisor, Customer Services, also Complainant’s supervisor (“S1”), denied telling Complainant that she must deliver all of her mail in eight hours on the following dates October 20, 27, and 30, 2018, and December 3 and 28, 2018. She also stated that all routes are adjusted with the consideration of a third bundle. A review of the Postal Service’s Daily Hours Report indicates that between Pay Period 2018-22- 1 (beginning on October 13, 2018) and Pay Period 2020-04-2 (February 14, 2020) Complainant had never worked a day for more than eight hours. 2021000211 5 In addition, National Association of Letter Carriers (NALC) Contract Talk-Third Bundles indicated that carriers deliver different types of mail that are commonly referred to as “bundles.” The minimum bundles that the carriers normally deliver on a daily basis are residual (cased) mail and Delivery Point Sequenced (DPS) mail. However, some routes will also receive Flats Sequencing System (FSS) mail. Letter carriers also received additional bundles of mail - or referred to as the “third bundle,” that are supplied in delivery order by the mailer. They may or may not addressed to the individual deliveries on the route. S1 became aware of Complainant’s medical restrictions when she transferred to the La Verne Post Office in July 2019, and her physician clarified her restrictions. S1 further noted that Complainant has never notified her that she was working outside of her restrictions. The Supervisor, Customer Service, also Complainant’s supervisor (“S2”), stated that on April 2, 2019, he issued Complainant a Letter of Warning for failure to deliver the express mail. Specifically, S2 explained that on March 22, 2019, Complainant had an international Express Mail Service “EMS” delivery on her route. However, Complainant failed to deliver the piece by the 3:00 p.m. deadline. During the investigative interview, Complainant asserted that she did now know EMS was international or that it counted as an express mail piece. S2 determined that he found Complainant’s explanation “incredible in light of Complainant’s 14 years as a letter carrier.” The record evidence supports the AJ’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered for the suspension were a pretext designed to mask a discriminatory or retaliatory motivation. Harassment/Hostile Work Environment To prove her harassment/hostile work environment claim, Complainant must establish that she 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, her disability or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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 the extent that Complainant included the denial of reasonable accommodation, an IMIP investigation, and a Letter of Warning as part of her hostile work environment claim, these issues are precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 2021000211 6 Regarding Complainant’s claim that on a continuous basis she was followed inside the office, she stated that she believed that her disability was a factor with regard to being followed. After acknowledging Complainant’s complaints including being followed in the office, Agency management conducted an Initial Management Inquiry Process (“IMIP”) in January 2019. During the IMIP investigation, S1 explained that her confrontation with Complainant would have occurred approximately two weeks after S1 started supervising the La Verne Post Office. S1 noted that at that time, Complainant turned in her Form 3996 “Request for Auxiliary Assistance” and became argumentative with her. S1 also noted that she had followed Complainant in and out of the office for about three times but only when she was working on Complainant’s PS Form 4584. Following the IMIP investigation results, a Labor Relations Manager stated that after speaking with witnesses and reviewing all relevant documentation, the IMIP found was that there was no evidence to support Complainant’s claims of harassment. The report indicated communication between Complainant and Agency management was lacking and should be addressed. S1 stated that on November 3, 2018 and January 12, 2019, she observed Complainant. Following the observations, S1 left copies of the observation results in Complainant’s drawer. Complainant claimed she did not receive the paperwork. Agency management, however, had a copy of the paperwork indicating Complainant received satisfactory marks. The record reflects that the Agency’s Handbook EL-801, Supervisor’s Safety Handbook, Section 3-5.10 clarifies that to enforce a high standard of professional driving performance, delivery unit supervisors must complete PS Form 4584, or “Observation of Driving Practice,” each driver under their supervision twice a year and at other times deemed appropriate. Moreover, claimed that S1 did not provide her PS Form 4584. However, Agency management had a copy of the paperwork indicating Complainant received satisfactory marks. Regarding Complainant’s claim that she was followed by S1, she explained that as a supervisor her job was to walk around the workroom and to make sure employees were doing their assignments. In sum, the evidence fully supports the AJ’s determination that there was simply no evidence that discriminatory or retaliatory animus played a role in the disputed actions. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s summary judgment decision finding no discrimination. 2021000211 7 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) 2021000211 8 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 2, 2022 Date