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

Equal Employment Opportunity Commission

Mar 16, 2022

Appeal No. 2021000361 (E.E.O.C. Mar. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edgardo D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021000361 Hearing No. 410-2017-00433X Agency No. 4K-290-0013-17 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 25, 2020 final action 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. During the relevant time, Complainant worked for the Agency as a Rural Carrier at the Summerville Post Office in Summerville, South Carolina. On February 13, 2017, Complainant filed a formal complaint alleging discrimination by the Agency on the basis of sex (male), disability,2 and in reprisal for prior EEO activity (Agency No. 4K-290-0060-11 as a witness) when: 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 Complainant identified his disabilities as right shoulder rotator cuff tear. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2021000361 2 1. since October 27, 2016, his request for a light duty assignment has been denied; 2. his request to work in the capacity as a supervisor was denied; and 3. on November 28, 2016, he was issued a Notice of Proposed Enforced Leave. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a Motion for Decision Without a Hearing. Complainant submitted a response to the motion. Subsequently, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding of no discrimination. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. We find that after a careful review of the record, the AJ properly concluded that no material issues of fact existed, found that summary judgment was appropriate and granted the Agency’s Motion for a Decision Without a Hearing. Regarding the merits of the subject claims, we find that the AJ properly found no discrimination regarding all the claims. Regarding claim 1, the AJ noted that the Manager, Customer Service (“M1”) (female), stated that Complainant was incapacitated from working from September 14, 2016 to November 7, 2016, due to his surgery. 2021000361 3 She noted that Complainant’s physician released him to return work on November 7, 2016 with the following restrictions: No lifting; no carrying; no climbing; no reaching about his shoulders; no pushing or pulling over 10 pounds; and pushing and pully under 10 pounds for 2 hours or less. The restrictions also indicate Complainant could only perform desk work and was only allowed to drive to and from work. Further, the medical restrictions indicated that the anticipated duration of the listed restrictions was 2 to 3 months. On November 1, 2016, M1 responded to Complainant’s request for temporary light duty. After a review of Complainant’s light duty request, M1 disapproved his request. Specifically, M1 stated that she did not have sufficient work to provide for Complainant within his medical limitations. Regarding claim 2, Complainant asserted that his request to work as a 204B (acting supervisor) was denied. He did concede that M1 had asked him in the past if he would consider working as a 204B, but Complainant had denied the offer because he was a union steward. M1 explained that at the time of the request in claim 2, she had a full complement of 204B/supervisors and had no hours or authority to add one more. Regarding claim 3, Complainant claimed that on November 28, 2016, he was issued a Notice of Proposed Enforced Leave. M1 acknowledged mistakenly issued Complainant the Notice of Proposed Placement on Enforced Leave. The evidence shows that as of the date the notice of proposed enforced leave was issued to Complainant, his restrictions limited him to desk work only, with no lifting or carrying. Because M1 believed Complainant to be a preference eligible veteran, he was issued a notice of proposed placement on enforced leave. However, Complainant was not, in fact, a preference eligible veteran and therefore should not have been issued the notice of proposed enforced leave.3 On appeal, Complainant, through his attorney, argues that the AJ “rehashed” the Agency’s assertion that placing Complainant on enforced leave was made in error. Complainant argues, however, that despite the Agency admitting it should not have issued the letter, Complainant was not allowed to return to work for several months. Although not specifically part of his EEO complaint, in making this argument, we find Complainant is, in essence, asserting the Agency failed to accommodate him after he was released to return to work, with medical restrictions, following his rotator cuff surgery. However, the record established that Complainant was unable to perform the essential functions of his carrier position for the months at issue. It is undisputed that, as a result of the surgery, Complainant was incapacitated from working at all from September 14, 2016, to November 7, 2016. When Complainant was released to return to work on November 7, 2016, he provided management with the following medical restrictions: no lifting; no carrying; no climbing; no reaching above his shoulders; no pushing or pulling over 10 pounds; and pushing and pulling 3 An Agency’s placement of a preference eligible veteran on enforced leave for more than 14 days is appealable to the Merit Systems Protection Board and thus requires the preference eligible veteran be given the due process of a notice of proposed enforced leave and a decision letter. 2021000361 4 under 10 pounds for 2 hours or less. The medical restrictions also indicated Complainant could only perform desk work and was only allowed to drive to and from work. Based on these restrictions, the Agency correctly determined that Complainant was unable to perform the vast majority of the essential functions of his rural carrier position. Although the anticipated duration of these medical restrictions was expected to last for two to three months, Complainant’s restrictions were subsequently revised by his medical provider effective November 30, 2016. The revision removed all the previous restrictions except a lifting ban on anything over 15 pounds. Even with this restriction, Agency management determined that Complainant would be unable to perform the essential carrying duties of his position. The evidence shows that carrying more than 15 pounds was regularly required of rural carriers. Therefore, the evidence establishes that, with this lifting restriction, Complainant was not qualified to perform in his carrier position. While Complainant now suggests that he could have delivered some light items, such as small packages or Express Mail, there is no evidence that such work was available or how this mail could practically be identified and delivered by Complainant rather than the regular carriers for such mail. It is undisputed that Complainant returned to work on March 25, 2017, once his lifting restriction was no longer required. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. We AFFIRM the Agency’s final action adopting the AJ’s decision without a hearing, 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. 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). 2021000361 5 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. 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. 2021000361 6 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 March 16, 2022 Date