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

Equal Employment Opportunity Commission

Apr 20, 2022

Appeal No. 2021002204 (E.E.O.C. Apr. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Corie E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021002204 Agency No. 4B-040-0010-20 DECISION On February 25, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 15, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Sales, Services Distribution Associate at the Derry Post Office in Derry, New Hampshire. On April 24, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of disability and in retaliation for prior EEO activity (identified as “FMLA”) when, on April 2, 2020, the District Reasonable Accommodation Committee (DRAC) denied her request for reassignment to a full-time regular clerk position outside of the Derry Post Office and she felt there was no other option but to retire.2 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. 2 The record reflects that on May 14, 2020, the Agency issued a Partial Acceptance/Partial Dismissal of Formal EEO Complaint in which the Agency dismissed five other claims for 2021002204 2 After the investigation, the Agency provided Complainant with a copy of the report of investigate and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, on December 18, 2020, the AJ issued an order dismissing Complainant’s hearing request and remanded the complaint to the Agency to issue a final decision based on the evidence developed during the investigation of the complaint. On January 15, 2021, the Agency issued its final decision, concluding no discrimination or unlawful retaliation had been established. The instant appeal followed. ANALYSIS AND FINDINGS EEOC regulations and Commission precedent provide EEOC administrative judges (AJs) with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. § 1614.109; EEO MD-110, at 9-10. An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. § 1614.109(f)(3); EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 7, 9-10 (1999). We have reviewed the evidence of record and find that the AJ acted within her discretion to dismiss Complainant’s hearing request when she failed to comply with the AJ’s orders. Both parties were notified that failure to follow orders of the AJ might result in sanctions pursuant to 29 C.F.R. § 1614.109(f)(3). The record fully supports the AJ’s determination that Complainant did not follow the orders of the AJ when Complainant did not call or email the AJ for the December 8, 2020 Initial Conference. On the same day, the AJ gave Complainant three calendar days in written Order to Show Cause why her request for a hearing should not be dismissed. Complainant did not respond to the Order to Show Cause. Accordingly, the AJ properly dismissed Complainant’s hearing request. See 29 C.F.R § 1614.109(f)(3). We now turn to the merits of the case. 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. untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Complainant does not address this matter on appeal, and we will not consider these claims further herein. 2021002204 3 Here, Complainant identified her disabilities as anxiety and depression. Complainant asserted that the Postmaster denied her request for a reasonable accommodation for a reassignment to a full-time clerk position outside of Derry New Hampshire Post Office, but preferably in or near Laconia, New Hampshire. On February 5, 2020, Complainant had a telephone meeting with the District Reasonable Accommodation Committee (DRAC). Complainant advised the DRAC to perform a search for a reassignment for her. Specifically, Complainant stated that she was not willing to work in a PTF (part-time flexible) or NTFT (non-traditional full-time) position. Complainant, as a Full-Time Regular employee, emphasized to the DRAC that a reassignment to a part-time flexible or non-traditional full-time clerk was not viable for her because she had approximately 22 years with the Agency and did not feel she should take a lesser position. On April 2, 2020, the DRAC Co-Chair issued Complainant an Accommodation Denial Letter. The DRAC Co-Chair stated that a review of Complainant’s medical documentation indicated that her limitations extended only to working in the Derry, New Hampshire Post Office, and there was no indication that Complainant was otherwise limited in another major life activity. The DRAC Co-Chair determined that the inability to work at a single job location because of differences with supervision at that location “does not constitute a ‘disability’ under the governing law and regulation and, for this reason you are not considered to be ‘disabled,’ relative to an entitlement to a reasonable accommodation.” Moreover, the DRAC Co-Chair stated that after conducting a search for a vacant and funded position for a potential reassignment-based accommodation, the DRAC was unable to locate such a position for Complainant. In most circumstances, the Commission has held that an employer does not have to provide an employee with a new supervisor as a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation, Question 33. See also, Famber v. Social Security Admin., EEOC Appeal No. 0120101703 (Aug. 15, 2012). There is nothing in this case that suggests the need to deviate from this general rule. Because the Agency was not obligated to provide Complainant with a reassignment away from his supervisors in Derry, we find that the Agency did not err in denying her reasonable accommodation requests for reassignment. Constructive Discharge Finally, Complainant asserted that she was forced to resign from Agency employment. In essence, by arguing her resignation was coerced by the Agency's actions, Complainant is raising a claim that she was constructively discharged. The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661 (March 11, 2016), citing Walch v. Dept. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). 2021002204 4 Here, in light of our finding that Complainant was not subjected to discrimination or retaliatory animus, we conclude that Complainant has failed to prove that her resignation was the result of a discriminatory constructive discharge from the Agency. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation 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. 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. 2021002204 5 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. 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 April 20, 2022 Date