[Redacted], Douglas F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (New York Metro Area), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022005181 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Douglas F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (New York Metro Area), Agency. Appeal No. 2022005181 Agency No. 4B-100-00 DECISION On September 30, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 12, 2022 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-Time Mail Handler at the Agency’s postal facility in New York, New York. On June 4, 2021, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability, age, and reprisal for prior protected EEO activity when: 1. From April 5, 2019, and ongoing, management has failed to restore him to a working status after an on-the-job-injury; and 2. He was sent a Notice of Intention to Separate. 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. 2022005181 2 The documentation provided in the record reflects, and Complainant admits, that because of his on-the-job-injury and resulting medical conditions he was unable to perform the majority, if not the entirety, of his original job duties. Complainant stated that his medical conditions include herniated discs in his back with bilateral radiculopathy down both arms and carpal tunnel syndrome in both hands with nerve damage in his left elbow. Complainant also stated that he has suffered from migraines since the injury and was diagnosed with Peptic Ulcer Disease in 2010. Complainant noted that he was first diagnosed with an occupational injury in 2004 and stated that his medical conditions are expected to be permanent. Complainant stated that in December 2017 he was offered a job to purportedly accommodate his medical conditions, but contended that the position did not accommodate him. Complainant stated that in May 2018 he accepted a different job offer (accommodation) and that he worked at the Hell Gate Station starting on July 17, 2018, and he performed duties including answering customer calls. However, he stated that he only worked in this position for two days before he was told to go home and informed that there was no job offer for him. 1. From April 5, 2019, and ongoing, management has failed to restore Complainant to a working status after an on-the-job-injury. The Agency noted that Complainant identified extensive background information regarding events that occurred in 2017 and 2018. However, Complainant did not identify any actions since April 5, 2019, regarding his actions or management's inaction, to return him to a working status. Complainant also stated that in December 2019 he filed a complaint with the Merit Systems Protection Board regarding the Agency not returning him to work, but his appeal was denied. Complainant stated that in February 2020, he applied for Social Security Disability. When asked why he believed his age was a factor in this issue, Complainant responded that the union has commented multiple times on the actions of the Agency over the years, whether it be early-out offers or targeted discrimination and harassment against older employees. Complainant noted that as a mail handler, he was at the highest pay scale “and for mail handlers there comes with age an understandable inability to maintain earlier work levels and also management's demands for more work with less people has a huge detrimental impact on mail handlers.” He further noted that management would often aggressively target older mail handlers, and if the employee was injured, management would redouble their efforts to make the employee miserable. Complainant stated that age, physical ability, and pay scale were all part of management's focus when targeting older or senior employees and asserted that being a 58-year- old employee with a 1985 seniority date who has significant injuries, he looks like the "bottom of the barrel" to USPS. When asked why he believed his EEO activity was a factor, Complainant responded that he was not certain, but it seemed like management was and remains determined to pursue its never- ending course of punitive actions against him until something sticks. He stated that he had noticed a trend that emerged in several different meetings with management which is that management insistently asked if he had filed an EEO claim. 2022005181 3 Complainant further stated that despite EEO's intervention in 2018 confirming the job offer's availability, management could have totally ignored that intervention, which has clearly caused consternation with management. He also stated that in the second EEO case he filed the following year he was paid for the two days he had worked at Hell Gate Station, but that none of his other issues have been addressed. Complainant stated that he was also told pursuing it further could take ten years and that he should have no expectation that USPS will ever stop or change practices where employees are concerned. Complainant noted that his medical conditions were a factor because both USPS and OWCP knew he had suffered for years from a significant and permanent disability resulting from an occupational injury. He stated that two of his supervisors demanded that he procure and submit backdated monthly medical letters in the middle of the pandemic, knowing full well that doctors were not working. Complainant also stated his medical status is "the well" from which all of management's actions against him flow and that a “job injury ultimately seems to inspire them to greater contortions in their blatant attempts to thwart and get around the federal protections that he is entitled to as a federal employee who has been hurt doing their assigned duties.” The Manager of Customer Services, FDR Station, denied that Complainant had attempted to return to work since April 2019 and management has failed to restore him to a working status and stated that Complainant was provided an opportunity to return to working status and noted that he was offered a position at the Hell Gate Station in 2018. She also stated that she was aware of a District Reasonable Accommodation Committee (DRAC) meeting held with Complainant, but could not provide the exact date and stated that it was her understanding that no accommodation were made as a result of the meeting. The Manager of Employee Development stated the DRAC determined that Complainant's limitations prevented him from performing the essential functions of his job as a mail handler as the duties of the work assignment involved intense physical labor. He stated that they received the written request for accommodation on April 2, 2018, and an interactive meeting was held on August 22, 2018, and that the accommodation requested was a sedentary job with an ergonomic chair, handsfree phone, and keyboard. This manager asserted that the accommodation requested was not granted and stated that the former Manager of Labor Relations now employed by Veteran's Administration, denied the request. The manager stated that the requested reassignment was not offered as there were no vacant funded positions available for which Complainant's limitations qualified him. Notice of Intention to Separate. Complainant stated that he received a Letter of Separation dated February 5, 2021. He contended that the letter stated, "our records indicate that you are on a continuous leave without pay status (LWOP) exceeding one year from July 23, 2018, to current day due to medical conditions. You have submitted medical documentation indicating that you are totally unable to report to duty." However, Complainant maintained that management had not told him what job assignment he was assigned to, so that he could come to work and no longer accrue leave without pay. 2022005181 4 Complainant also maintained that on August 21, 2020, the Head of Human Resources told him that he would have to "put Complainant up" for disability retirement and Complainant believed that that he was going to proceed with an offer of Disability Retirement, but instead Complainant was issued a Letter of Removal. Complainant also stated that he had received a prior Letter of Removal dated September 24, 2020, but that his union challenged the letter and that he was then issued the subsequent letter (February 5, 2021) which duplicated the earlier attempt at removing him. Complainant stated that he was again charged with Continuous Absence Without Leave (CAWOL), but that this time management claimed that Complainant was absent from January 1, 2019, to present, and did not report for his assigned scheduled tour of duty. Complainant once more reiterated that he did not have a job assignment, tour, days off, etc. Complainant also repeated his above testimony on why he believed his age, EEO activity and disability were factors. The record contains the Notice of Separation Disability (Non-Veteran) letter addressed to Complainant, dated February 5, 2021. The letter provides that Complainant had continuously been in a Leave Without Pay (LWOP) status since July 23, 2018, due to his medical conditions and also stated that Complainant had submitted medical documentation indicating that he was total unable to report to duty. The letter states that Per Employee and Labor Relations Manual (ELM) 365.341, "Separation- is a term used to indicate the separation of an employee other than a non-career or a probationary employee whose medical condition renders the employee unable to perform the duties of the position and who is ineligible for disability retirement." Additionally, section 365.342(a) of the ELM provides: At the expiration of 1 year of continuous absence without pay, an employee who has been absent because of illness may be separated for disability. This action is not mandatory, however, and if there is reason to believe the employee will recover within a reasonable length of time beyond the 1-year period, the employee may be granted additional leave in 30-day periods, not to exceed 90 days. If the employee's condition indicates that LWOP beyond that period is necessary incident to full recovery, the postal official must submit a comprehensive report to the area manager of Human Resources with appropriate recommendation and retain the employee on the rolls pending a decision. The Supervisor of Customer Services, FDR Station, stated that Complainant was sent a Notice of Intent to Separate on February 5, 2021, and confirmed that she was the management official who issued the letter and that the Acting Manager of FDR Station was the concurring management official. She maintained that per ELM Section 365.342, at the expiration of one year of CAWOL, an employee who has been absent because of illness may be separated for disability, and that this is what led to the decision to issue the letter. She denied that Complainant's age, EEO activity and disability were contributing factors, but that Complainant had exceeded one year of continuous leave without pay. 2022005181 5 The Labor Relations Specialist stated that Complainant was sent a Notice of Intent to Separate on February 5, 2021 and noted that the reason for the letter was that ELM Section 365.341 states: "Separation-disability is a term used to indicate the separation of an employee other than a non- career or a probationary employee whose medical condition renders the employee unable to perform the duties of the position and who is ineligible for disability retirement." He further noted that Complainant disagreed with the reason provided and claimed that he did not receive an administrative interview and claimed that management did not attempt to find him work at the FDR station. The Specialist denied that Complainant's age and EEO activity were factors in this claim and also stated that Complainant refused a reasonable accommodation on November 30, 2017, when asked if Complainant's disability was a factor. He further stated Complainant filed a grievance which was denied at Step 3 on June 22, 2021. The Acting Manager of FDR Station stated that she concurred with the issuance of the Letter of Intent to Separate issued to Complainant on February 5, 2021. She further stated the reason provided for the letter was that Complainant was on continuous leave without pay for over a year and that management provided inability to perform jobs over one year on LWOP. She stated that Complainant's age, EEO activity and disability were not factors. At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Because Complainant failed to respond, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency reasoned that, even if Complainant could establish a prima facie case of age, disability or reprisal, management had recited (above) legitimate, nondiscriminatory reasons for its actions. According to the Agency, Complainant failed to show that any of management's reasons for its actions were pretextual or unworthy of belief. Complainant filed the instant appeal. Complainant maintains, among other things, that he is a victim of unlawful discrimination. ANALYSIS AND FINDINGS 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”). 2022005181 6 Reasonable Accommodation Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to provide reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o),(p). The term “qualified individual with a disability,” with respect to employment, is defined as a person with a disability who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term “position” is not limited to the position currently held by the employee but may also include positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is ““qualified,” an agency may have to look beyond the position which the employee presently encumbers. Enforcement Guidance on Reasonable Accommodation; see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix, to 29 C.F.R. Part 1630.2(o). An agency should reassign the employee to a vacant position that is equivalent in terms of pay, status, and other related factors. If there are no vacant equivalent positions, then the agency should reassign the employee to a lower-level position that is closest to the current position. Id. Here, the record shows that Complainant was an “individual with a disability” who could no longer perform the essential functions of his position. The sole question for us to decide is whether Complainant the Agency properly engaged in the reassignment process. Here, the evidence shows the Agency’s DRAC determined that Complainant's limitations prevented him from performing the essential functions of his job as a mail handler as the duties of the work assignment involved intense physical labor. Interactive meetings were held in August 2018, in an attempt to locate a sedentary job to which Complainant could be reassigned with an ergonomic chair, handsfree phone, and keyboard. However, Complainant was not reassigned because there were no vacant funded positions available for which Complainant's limitations qualified him. After this process, Complainant remained out of work and applied for Social Security disability benefits. There is no evidence of record that there was a position available to which Complainant could have been reassigned during the period covered by the instant EEO complaint. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2022005181 7 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). Concerning the Notice of Separation, management stated that pursuant to ELM Sections 365.341 and 2, at the expiration of one year, an employee who has been absent because of illness may be separated for disability, and that this is what led to the decision to issue the letter. Management denied that any of Complainant's claimed bases were contributing factors, but that Complainant had exceeded one year of continuous leave without pay and management provided inability to perform jobs over one year on LWOP. Next, we turn to Complainant to establish that the Agency’s reasons were pretext for discrimination. Complainant maintains that the Agency remained aware of his age and medical conditions and questioned his EEO activity, especially since the occurrence of his work-related injury. However, beyond conjecture, Complainant has not shown that the Agency’s reasons for its actions were because of unlawful discrimination. CONCLUSION After a review of the record in its entirety, including statements and contentions not specifically addressed herein, it is the decision of the EEOC to AFFIRM the Agency’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. 2022005181 8 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) 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. 2022005181 9 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 January 31, 2023 Date