[Redacted], Erick K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Sep 8, 2021

Appeal No. 2020001564 (E.E.O.C. Sep. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erick K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020001564 Agency No. 4E-890-0042-18 DECISION On November 25, 2019, 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 October 23, 2019, final decision concerning his 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., 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. For the following reasons, the Commission REVERSES the Agency’s final decision. ISSUE PRESENTED The issue presented on appeal is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on national origin, color, disability, age, and/or reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Q7-01 City Carrier at the Agency’s Spring Valley Station facility in Las Vegas, Nevada. Complainant is Hispanic 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. 2020001564 2 and Brown, and he was born in December 1953. Complainant identified his disability as back and leg injuries from falling at work on March 31, 2017. Complainant stated that management was aware that he engaged in protected activity in May 2018 when he requested to meet with his representative to initiate the instant EEO complaint. Complainant stated that his medical restrictions were as follows: no driving, no climbing, no kneeling, no bending, no twisting, limited standing, limited walking, limited sitting, no lifting over 15 pounds, and no pushing or pulling over 40 pounds. According to Complainant, starting on May 15, 2017, his medical restrictions were accommodated, and he was offered eight hours of work per day. Complainant stated that, beginning on July 12, 2017, the Station Manager (S1) stopped accommodating his medical restrictions. Complainant alleged that, on July 12, 2017, S1 told him that “she could not waste her Clerk budget on limited duty Carriers.” Report of Investigation (ROI) at 150. According to Complainant, S1 only gave him one hour and 12 minutes of work per day, casing his route, then she would send him home. Complainant stated that other tasks that he could perform within his restrictions were separating undeliverable bulk business mail (UBBM), assisting with the “Dutch door,” scanning returned parcels, and writing up second notices. Complainant averred that S1 also directed the other supervisors not to give Complainant additional work. Complainant stated that S1 subsequently told him that she did not need him to case his route and did not offer him any work. Complainant elected to participate in alternative dispute resolution in lieu of traditional EEO counseling for the instant complaint. According to Complainant, S1 expressed that she was angry that she had to participate in the mediation of Complainant’s EEO matter. On August 1, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic),2 color (Brown), disability (physical), age (born in December 1953), and reprisal for prior protected EEO activity when, starting on April 23, 2018, management failed to accommodate him based on his medical restrictions. The Agency initially dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim as a collateral attack on the grievance process. On appeal, we found that Complainant was alleging that the Agency was refusing to accommodate his disability with eight hours of work per day and remanded the matter for further processing. Erick K. v. U.S. Postal Serv., EEOC Appeal No. 2019000871 (Feb. 12, 2019). During the investigation of the complaint, the EEO Investigator (E1) asked Complainant to complete and sign a Privacy Act Authorization and Waiver that would allow the Agency and the Department of Labor’s Office of Workers Compensation Programs to disclose information regarding Complainant’s workers compensation claims. 2 Although Complainant designated his race as “Hispanic,” the Commission recognizes this term as an indication of national origin rather than race. 2020001564 3 On March 10, 2019, Complainant’s non-attorney representative emailed E1, stating that, although Complainant was electing not to sign the Privacy Act Authorization and Waiver, Complainant “will provide documents requested that are directly relevant to his case.” ROI at 255. There is no indication in the record that E1 requested any documents from Complainant or his representative. On March 25, 2019, E1 emailed S1 regarding the investigation of Complainant’s EEO complaint, stating that she had attempted to contact S1 numerous times by phone and had been unable to reach her. ROI at 168. On March 26, 2019, E1 emailed S1 an investigative affidavit, instructions for completing the affidavit, a cover letter, a litigation hold notice, and a certification form, and E1 asked S1 to return the signed and dated affidavit and forms within 14 calendar days of receipt. ROI at 171. At 9:41 p.m. on March 26, 2019, E1 received a “read receipt” indicating that S1 had opened the email she sent earlier that day. ROI at 172. When S1 did not return the affidavit or respond to further emails and calls from E1, E1 contacted the Las Vegas District Human Resources Manager (HR1) on May 14, 2019. On May 15, 2019, HR1 emailed E1, stating, “[S1] is currently not at work. I would not recommend sending her the affidavit to her house due to the nature of her absence.” ROI at 178. On June 12, 2019, E1 mailed an affidavit request to S1’s address of record by Priority Mail. The record contains redacted tracking information showing that a package was delivered on June 14, 2019. ROI at 184.3 E1 interviewed three management officials. An individual who stated that, during the time of events giving rise to the instant complaint, he was the Manager, Customer Service Operations above S1 in the chain of command (S2) repeatedly answered questions by stating, “Have no idea who this person [Complainant] is to even make a statement.” ROI at 186-91. A Supervisor, Customer Service (S3) stated that, although he had supervised Complainant, he was not Complainant’s supervisor during the relevant timeframe. Another Supervisor, Customer Service (S4) stated that she did supervise Complainant during the relevant timeframe. 3 We remind the Agency that federal employees have an obligation to comply with EEO investigations. EEOC Regulations provide that the Agency and any employee of a federal agency shall produce such evidence as the investigator deems necessary. 29 C.F.R. § 1614.108(c)(1). The regulations further provide that, when the Agency or its employees “fail without good cause shown to respond fully and in timely fashion” to requests for documents, affidavits, the attendance of witnesses, or other evidence “the investigator may note in the investigative record that the decisionmaker should, or the Commission on appeal, may in appropriate circumstances: (i) draw an adverse inference that the requested information, or the testimony of the requested witness would have reflected unfavorably on the party refusing to provide the requested information; (ii) consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) exclude other evidence offered by the party failing to produce the requested information or witness; (iv) issue a decision fully or partially in favor of the opposing party; or (v) take such other actions as it deems appropriate.” 29 C.F.R. § 1614.108(c)(3). 2020001564 4 However, when asked about Complainant’s medical condition and medical restrictions, S4 responded, “I only knew he was only allowed to work a certain number of hours when they transferred him from another station to Spring Valley.” ROI at 202. S4 stated that she had not seen any medical documentation and that she was not aware of Complainant’s restrictions. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a final decision. In his request for a final decision, Complainant noted that the investigation of his complaint was incomplete and inadequate and stated that the Agency could contact him or his non-attorney representative if they needed any documents that were not requested by E1.4 In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that, in the absence of any medical documentation, Complainant had not established that he was an individual with a disability under the Rehabilitation Act. The instant appeal followed. Neither party submitted a statement or brief on appeal. ANALYSIS AND FINDINGS 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”). Complainant alleged that he was denied a reasonable accommodation. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he 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, No. 915.002 (Oct. 17, 2002). 4 It is unclear whether Complainant requested a final decision because of the inadequacy of the record. Although the Agency is responsible for developing an appropriate and impartial factual record, we note that the hearing process is also part of the investigative process and that EEOC AJs oversee the development of the record. See 29 C.F.R. § 1614.108(b); 29 C.F.R. § 1614.109. 2020001564 5 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. 29 C.F.R. §§ 1630.2(o) and (p). “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). Complainant stated that he had a 15-pound lifting restriction. Although there is no supporting medical documentation in the record, Complainant’s assertion that he had a 15-pound lifting restriction is unrebutted in the record. Based on Commission precedent, a 15-pound lifting restriction renders Complainant an individual with a disability under the Rehabilitation Act. See Bill A. v. Dep’t of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016) (Complainant restricted from stooping/bending and lifting more than 15 pounds is an individual with a disability). Accordingly, we conclude that Complainant is an individual with a disability. We further find that Complainant is a qualified individual with a disability. Complainant stated that he was accommodated with eight hours of work that he was capable of performing within his medical restrictions until July 12, 2017. Complainant alleged that, starting on July 12, 2017, S1 only gave him one hour and 12 minutes of work per day. Although she did not know the reason he was given limited work hours, S4’s statement corroborates that Complainant was given a limited number of hours to work. We find that, when the Agency stopped giving Complainant eight hours of work per day, the Agency denied Complainant a reasonable accommodation. The Agency has not established that accommodating Complainant with eight hours of work per day constituted undue hardship. Further, the Agency has failed to provide any legitimate, nondiscriminatory reason for its actions.5 The record does not contain any information about why all tasks other than casing his route were suddenly taken away from Complainant. S2, S3, and S4 provided investigative affidavits, but they were unable to explain why Complainant was only given one hour and 12 minutes of work per day. Despite multiple contact attempts by E1, S1 did not provide an investigative affidavit. The Agency is therefore liable for its failure to accommodate Complainant. Moreover, given the lack of explanation as to why Complainant’s hours were suddenly reduced and he was no longer being accommodated, we find that the agency failed to act in good faith and therefore compensatory damages are awardable. 5 Moreover, S1’s alleged statement that “she could not waste her Clerk budget on limited duty Carriers” and her alleged anger at having to participate in the mediation of Complainant’s EEO complaint suggests that she may have been motivated by discriminatory and/or retaliatory animus. 2020001564 6 Based on our finding that Complainant was denied a reasonable accommodation for his disability, we need not analyze whether Complainant established discrimination regarding the other raised bases, as no further remedial relief would stem from such a finding. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s final decision finding no discrimination and REMAND the matter for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to take the following remedial action: 1. To the extent it has not done so already, the Agency shall immediately engage in the interactive process in order to provide Complainant with an effective reasonable accommodation to perform the essential duties of his position. 2. Within 60 calendar days of the date this decision is issued, the Agency shall restore all leave taken by Complainant because of its failure to provide him with a reasonable accommodation beginning on July 12, 2017. 3. Within 60 calendar days of the date this decision is issued, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission's Decision.” The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated. 2020001564 7 4. Within 90 calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant's claim of compensatory damages. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than 30 days after the completion of the investigation. 5. Within 90 calendar days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive training to S1, S2, S3, and S4. The training shall address the Agency’s obligations under the Rehabilitation Act with respect to reasonable accommodation, as well as the obligation of federal employees to comply with EEO investigations. 6. Within 60 calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against S1. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If S1 has left the Agency's employment, then the Agency shall furnish documentation of her departure date. 7. Within 30 calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the statement entitled “Posting Order.” The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Spring Valley Station facility in Las Vegas, Nevada copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. 2020001564 8 The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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). 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. 2020001564 9 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. 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). 2020001564 10 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 September 8, 2021 Date