[Redacted], Diedre A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2020004590 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diedre A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020004590 Agency No. 4K-210-0144-19 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 July 8, 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., and 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency’s Bal-Parkville Post Office in Parkville, Maryland. Complainant stated that from July 16, 2019, to September 18, 2019, she was denied light duty. Complainant explained that when the temperature rises above 85 degrees, she needs an air- conditioned vehicle or the ability to work indoors. According to Complainant, she was sent home by management even though there was indoor work available. Report of Investigation (ROI) at 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. 2020004590 2 13, 121, Complainant Affidavit at 3.2 Complainant stated that a Manager of Customer Services (MCS-1) (Black, African American, female) repeatedly sent her home and told her that there was no work or an air-conditioned vehicle available. ROI at 15-26, 132. On November 22, 2019, a supervisor (S1) (Black, Black, female) issued Complainant a 7-day no time-off suspension for attendance issues, based on nine instances of unscheduled leave occurring between September 3, 2019, and October 31, 2019. Another Manager of Customer Services (MCS-2) (Black, Black, female) concurred on the suspension. ROI at 332-4. On December 5, 2019, S1 rescinded the suspension as the result of a grievance settlement. ROI at 335. Complainant stated that on January 24, 2020, she was given a pre-disciplinary interview (PDI) for failure to follow instructions related to late parcels. ROI at 135. On January 29, 2020, another supervisor (S2) issued Complainant a 14-day suspension for Failure to Follow Instructions.3 Specifically, Complainant failed to follow the instructions of her supervisor, and failed to deliver six packages before 8:00 p.m. on January 21, 2020. MCS-2 concurred on the suspension. ROI at 336-7. On February 13, 2020, following a grievance settlement, the suspension was reduced to a discussion. ROI at 338. Believing that the Agency’s actions were discriminatory, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant’s concerns were unsuccessful. On November 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), color (Tan/Dark), and disability (asthma), and in reprisal for prior protected EEO activity, when: 1. from July 16, 2019 to September 18, 2019, Complainant was denied Light Duty; 2. on September 21, 2019, Complainant received a PDI for failure to follow instructions;4 and, 3. on November 22, 2019, Complainant was issued a 7-Day Suspension. 2 We note that the ROI was missing page 3 of Complainant’s first affidavit, but the Agency did provide it separately. However, it has no ROI page number. 3 The record shows that S2 did not return a completed affidavit because she was on extended leave, and MCS-2 did not know when S2 planned to return to work. ROI at 81, 253. 4 The Agency dismissed claim 2 for failure to state a claim. ROI at 71-2. We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). Since Complainant does not contest the Agency’s dismissal of claim 2 on appeal, we will not address this claim in the instant decision. 2020004590 3 The Agency noted that Complainant requested to amend her complaint on February 10, 2020, and it accepted the following claim: 4. Complainant was given a PDI, and she was subsequently issued a 14-Day No Time Off Suspension on January 29, 2020. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). As an initial matter, the Agency noted that claims 3 and 4 should be procedurally dismissed because the record showed that the 7-day suspension was rescinded, and the 14-day suspension was reduced to a discussion and the Commission has found that official discussions were not disciplinary actions. Nevertheless, the Agency assumed, for the sake of argument, that Complainant was aggrieved and addressed the merits of claims 3 and 4. The Agency determined that Complainant did not establish a prima facie case of discrimination based on her color, disability, race or sex, or in reprisal for protected EEO activity. However, the Agency assumed, for the sake of argument, that Complainant established a prima facie case of discrimination. The Agency then found that management officials articulated legitimate, nondiscriminatory reasons for their actions and that Complainant did not prove that the reasons were pretexts for discrimination.5 The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. Complainant filed the instant appeal but did not provide any arguments on appeal. The Agency did not submit a brief in response. 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 Chap. 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”). 5 We note that the Agency analyzed claim 1 as a disparate treatment claim, but that it is more properly treated as a claim of a failure to accommodate. As such, claim 1 will be analyzed under the reasonable accommodation framework. 2020004590 4 ANALYSIS AND FINDINGS Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). Complainant stated that starting on July 16, 2019, MCS-1 repeatedly sent her home and denied her the opportunity to work, despite the availability of work within her medical restrictions. ROI at 15-26. When making an accommodation request, an employee is not required to use the magic words “reasonable accommodation.” Instead, the employee need only inform the Agency that she needs an adjustment or change at work for a reason related to a medical condition. See Enforcement Guidance at Q.1. In this case, we find that Complainant’s requests for an air- conditioned vehicle or indoor work due to a medical restriction, which prevented her from working in conditions above 85 degrees, were requests for a reasonable accommodation. However, there is no evidence that Complainant provided supporting medical documentation when she made her requests to management officials. An agency is permitted to seek documentation where it is necessary to determine that the individual has a covered disability for which the requested accommodation is necessary. See 29 C.F.R. § 1630.14; Ross v. Dep’t. of the Treasury, EEOC Appeal No. 01982708 (August 3, 2001). Complainant asserted that she provided medical documentation to MCS-1 approximately three years earlier. Complainant Affidavit at 3. However, MCS-1 denied that any documentation was provided. Similarly, other managers stated that they did not receive medical documentation from Complainant in support of her requests. ROI at 152, 173, 197, 218, 229. Even if Complainant had previously submitted documentation, the Commission has found that an agency may request updated medical information when a complainant had not provided medical information for over one year. See Diaz v. U.S. Postal Serv., EEOC Appeal No. 0120112548 (Jun. 7, 2012). The Occupational Health Nurse Administrator (OHNA) (Black, African American, female) stated that Complainant submitted a reasonable accommodation request form on September 10, 2019. Days later, on September 13, 2019, Complainant provided a medical document dated July 17, 2019. 2020004590 5 According to OHNA, an interactive meeting was held on September 17, 2019, and the Acting Manager of Customer Service (AMCS) verbally agreed to immediately provide a temporary accommodation, pending the approval of a final accommodation. ROI at 262-4, 269-71. Complainant acknowledged that AMCS gave her work that same day. ROI at 121-2. Based on our review of the instant record, we find no evidence that Complainant provided her July 17, 2019 medical documentation to the Agency earlier than September 13, 2019, days before the Agency promptly provided an accommodation. As such, we find that Complainant did not establish that the Agency failed to provide a reasonable accommodation from July 16, 2019, to September 18, 2019. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. 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 consideration was a factor in the adverse employment action. 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, 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, 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. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). As noted above, in its decision the Agency noted that claims 3 and 4 should be dismissed for failure to state a claim. We disagree, as neither suspension was rescinded or reduced until after the formal complaint was filed and amended.6 6 The 7-day suspension (claim 3) was not rescinded until December 5, 2019, which was after the formal complaint was filed on November 26, 2019. Similarly, the 14-day suspension (claim 4) was reduced to a discussion on February 13, 2020, days after Complainant’s request to amend her complaint to add the claim on February 10, 2020. ROI at 335, 71, 338, 67. 2020004590 6 Instead, the claims may have been more appropriately analyzed for mootness. We shall, however, proceed to assess the merits of claims 3 and 4, as done by the Agency in its decision. Assuming, arguendo, that Complainant established a prima facie case of discrimination based on color, disability, race and sex, and in reprisal for protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons regarding claims 3 and 4. With respect to claim 3, S1 stated that Complainant was issued a suspension for failure to be regular in attendance. ROI at 224. Another supervisor (S3) (Black, African American, female) explained that Complainant failed to be in regular attendance and continuously exceeded the leave allowed by her Family and Medical Leave Act (FMLA) case. According to S3, she informed Complainant that she should provide updated medical documentation to amend her FMLA case, but Complainant failed to do so. Additionally, S3 noted that the documentation submitted for Complainant’s non-FMLA leave requests was insufficient. ROI at 230. Regarding claim 4, another supervisor (S4) (Brown, African American, female) stated that when Complainant sent her a video of an argument with a customer’s daughter, she instructed Complainant to disengage and skip delivery for the day. S4 asserted that Complainant refused to give her remaining mail to the carrier sent by management to deliver it. ROI at 185-6, 14. MCS-2 stated that Complainant was suspended for failure to follow a contingency plan to deviate to save service on parcels. ROI at 208. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Here, Complainant did not provide any arguments on appeal. In her affidavit, Complainant stated that S4 was being spiteful, and that Complainant was not informed to deviate in order to deliver the parcels by a designated time. ROI at 127, 137. However, Complainant did not provide any supporting evidence. She only offered bare assertions, that management officials discriminated against her, which are insufficient to prove pretext or establish discrimination. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her color, disability, race or sex, or in reprisal for protected EEO activity, when it issued Complainant two suspensions. 2020004590 7 CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency discriminated against her as alleged. 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. 2020004590 8 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 November 15, 2021 Date