[Redacted], Daisy B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020004347 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Daisy B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004347 Hearing No. 460-2020-00086X Agency No. 4G-770-0332-19 DECISION On July 14, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 25, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order adopting the AJ’s decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency’s facility in Richmond, Texas. On September 30, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (mental) and reprisal for prior protected EEO activity when: 1. on July 17, 2019, Complainant received notification to report to work which would violate her medical restrictions and management misused Agency property; 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. 2020004347 2 2. on July 17, 2019, the Postmaster stood over Complainant and aggressively took papers out of her hand; 3. on July 17, 2019, Complainant’s leave request was denied; 4. on July 17, and 29, 2019, Complainant’s Office of Workers’ Compensation (OWCP) paperwork was delayed; and 5. on July 29, 2019, management refused to accept and/or sign for union grievances. On October 21, 2019, the Agency issued a Partial Acceptance and Dismissal. The Agency dismissed claims 1 and 2 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim finding that Complainant was not aggrieved. The Agency dismissed claims 4 and 5, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that Complainant was lodging a collateral attack on the proceedings of another forum, specifically proceedings related to the Department of Labor, OWCP, and the negotiated grievance procedure. The Agency accepted claim 3 for investigation. Complaint File (CF) at 207-16. The investigative record reflects the following pertinent matters relating to the subject claim. Due to a prior injury, Complainant has been on an extended off duty status prior to the incident at issue. CF at 229-30. On July 6, 2019, the Postmaster reported to the Richmond facility for duty. CF at 251. At the time of his arrival, he was informed that Complainant had been out on medical leave, but he could not locate the paperwork for this. Id. The Postmaster averred that he only saw a CA-17 form for Complainant, but no medical notes from Complainant. Id. On or around July 11, 2019, the Postmaster requested that Complainant report to duty on July 15, 2019, or provide a medical documentation dated within 30 days of July 15, 2019, along with a corresponding CA-17 form detailing her restrictions. CF at 252. Instead, of the requested form, Complainant submitted a Form 3971 Request for or Notification of Absence, by mail, requesting leave from July 11, 2019 through September 12, 2019. On July 17, 2019, Complainant hand delivered the same request submitting the Form 3971. She did not work that day nor was she disciplined for not working that day. The Postmaster asserted that any denials were based on lack of medical documentation and not Complainant’s disability or prior EEO activity. Id. 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. After providing an opportunity for the parties to respond to an Acknowledgement Order and conducting an Initial Conference, the AJ issued a decision without a hearing on June 22, 2020. The AJ determined that further development of the record was unlikely to lead to a finding of discrimination as preponderant evidence failed to show that Complainant was subjected to discrimination. Here, the AJ determined that, assuming, arguendo, that Complainant established a prima facie case of discrimination, the Agency had articulated legitimate, nondiscriminatory reasons for its action. 2020004347 3 Specifically, due to Complainant’s extended off duty status, the Postmaster requested for her to either return to duty or provide proper medical documentation. The AJ found the Agency’s request was based on her extended absence, and not discriminatory animus. On June 25, 2020, the Agency issued a final decision adopting the AJ’s determination of no discrimination. CONTENTIONS ON APPEAL On appeal, Complainant details her prior work and medical history from 2014 to 2018, as background to her current appeal. Complainant asserts that it is clear that the Agency is well aware of her disability and yet, continually harasses her by requesting excessive documentation regarding her medical condition. Complainant did not specifically address her July 17, 2019, claim on appeal. Instead, she vaguely references July 2019, without providing further arguments to support her appeal. Complainant does not contest the Agency’s dismissal of claims 1, 2, 4, and 5. In response, the Agency asserts that the AJ properly found that Complainant was not discriminated or retaliated against. The Agency requests that the Commission affirm its final decision adopting the AJ’s determination of no discrimination. 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”). ANALYSIS AND FINDINGS As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. Id. at Chap. 9, § IV.A.3. Complainant has not challenged the Agency's decision to dismissal claims 1, 2, 4, and 5. Accordingly, we will only address claim (3) herein. 2020004347 4 Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. 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). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We find that summary judgment was appropriate, and the Agency was entitled to a grant of summary judgment as a matter of law. Having considered Complainant's arguments in her opposition to the motion for summary judgment and on appeal, we find that there exists no genuine issue of material fact; the record is adequately developed; and no findings of fact need be made by weighing conflicting evidence or assessing witness credibility. Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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. St. Mary's Honor Ctr. 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. 2020004347 5 Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination2, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its action. In this matter, based on Complainant’s extended absence beginning in June 2018, on July 11, 2019, the Postmaster requested that Complainant return to work on July 15, 2019, or provide appropriate medical documentation with a form CA-17 stating her restrictions within 30 days of July 15, 2019. Complainant failed to comply with the Postmaster’s request. Complainant did not provide the medical documentation as requested and instead submitted a leave request form on July 17, 2019. As such, the Postmaster did not provide Complainant with the leave requested. Complainant failed to demonstrate that the Agency’s reason was pretext for discrimination. Therefore, we find that there is no evidence to demonstrate that the Postmaster’s request for medical documentation for Complainant’s extended absence for work or alleged denial of leave on July 17, 2019, were motivated by discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing the AJ’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. 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. 2 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. 2020004347 6 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. 2020004347 7 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 November 22, 2021 Date