[Redacted], Denis C, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Dec 14, 2020

Appeal No. 2020005011 (E.E.O.C. Dec. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Denis C,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020005011 Agency No. 4C-080-0105-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 12, 2020, dismissing a formal complaint of unlawful employment discrimination. BACKGROUND During the period at issue, Complainant worked as a Custodian at the Agency’s facility in Columbus, New Jersey. On July 27, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination. In its final decision, dated August 12, 2020, the Agency determined that Complainant’s complaint was comprised of the following claims: Complainant alleged harassment when: 1) On a date not specified around March 2020, [his] work schedule was changed; 2) On or around April 7, 2020, [he was] issued a Letter of Warning (LOW); 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. 2020005011 2 3) On or around April 27, 2020, [he was] issued a suspension; 4) On June 2, 2020, the Officer in Charge (OIC) harassed [him]; 5) On dates not specified, [his] leave requests were denied. The Agency dismissed Complainant’s complaint for failure to state a claim. The Agency reasoned that Complainant alleged discriminatory harassment when he requested “a union steward to be present when [he was] given an investigative interview.” The Agency found that Complainant failed to identify a purview under the Commission’s jurisdiction. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s final decision dismissing his complaint. Complainant asserts that on April 21, 2020, he returned to work and informed the Officer in Charge (OIC) verbally and through email that he provided medical documentation to his union representative which was then submitted to the Agency nurse. ANALYSIS AND FINDINGS The Agency improperly dismissed the formal complaint for failure to state a claim. Complainant is alleging that he was subjected to harassment based on reprisal and disability when the Agency denied his leave requests, failed to provide him with a reasonable accommodation, subjected him to pre-disciplinary interviews, and issued him disciplinary actions. While the Agency asserts Complainant did not allege an EEO basis under the Commission’s purview, we disagree.2 The record contain an EEO Contact Summary form indicating Complainant was alleging the basis of reprisal. Complainant, in the “remedy requested” section of the EEO Contact Summary form, asserted that he wanted to return to his prior work schedule and for the Agency to follow his doctor’s recommendation. The record also contains a copy of an EEO Counselor’s Report. Therein, Complainant asserts that he was out sick due to COVID-19 and that he submitted medical documentation to the Agency but his sick leave has not been processed. Specifically, Complainant stated that he provided medical documentation to the union who sent it to the Agency’s medical unit.3 2 We note that the record is devoid of evidence that the Agency tried to clarify the bases that Complainant was seeking to raise in his complaint prior to its final decision dismissing his complaint. 3 The record contains a letter dated April 20, 2020 from a Department of Veteran’s Affairs physician. Therein, he stated that Complainant was recovering at home, in isolation from March 28, 2020-April 20, 2020 due to symptoms that may indicate possible infection with Coronavirus (COVID-19). The physician requested that Complainant be allowed to return to work and that Complainant currently did not have any active symptoms. The record also contains a letter from Complainant’s physician dated June 3, 2020. Therein, the physician asserts that Complainant has 2020005011 3 Complainant, according to the EEO Counselor’s Report, is seeking, in pertinent part, to return to his prior work schedule and have the Agency follow his doctor’s recommendation. Finally, the record contains a copy of Complainant’s formal complaint. Therein, Complainant checked the basis of reprisal on his formal complaint form. In an attachment, to Complainant’s formal complaint, is an email from a union official to the Agency’s Officer in Charge (OIC) dated April 18, 2020. Therein, the union official stated that Complainant sent him his medical clearance and he forwarded it to the Occupational Health Nurse Administrator (OHNA). Based on the foregoing, we find that Complainant alleged harassment on the bases of disability4 and reprisal. We find that Complainant was alleging reprisal when he submitted his medical documentation to a union steward to request a reasonable accommodation (i.e. paid sick leave during his illness and a shift change). Requesting a reasonable accommodation constitutes protected activity under the Rehabilitation Act. See Roberts v. Dep’t of Transp., EEOC Appeal No. 01970727 (Sept. 15, 2000). If Complainant seeks to amend his complaint to include additional bases of discrimination, he should contact the Agency’s EEO Director, in writing, with his request. Complainant has alleged that he was subjected to discriminatory harassment based on disability and reprisal (requesting a reasonable accommodation). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:” and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). been experiencing significant stress and that changing his work shift would decrease Complainant’s stress. 4 We do not make a determination herein (at the procedural level) whether Complainant is an individual with a disability (or regarded by the Agency as having a disability) under the Rehabilitation Act. 2020005011 4 In the instant matter, Complainant alleges that he was subjected to harassment based on disability and reprisal when the Agency denied his leave requests, subjected him to pre-disciplinary interviews (PDIs), subjected him to other disciplinary actions, and denied his reasonable accommodation request (i.e. paid sick leave and a shift change). Thus, we find that Complainant has set forth an actionable claim of harassment. We REVERSE the Agency’s final decision dismissing Complainant’s complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). 2020005011 5 Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2020005011 6 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 December 14, 2020 Date