[Redacted], Ernie S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Sep 7, 2021

Appeal No. 2020004057 (E.E.O.C. Sep. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ernie S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020004057 Hearing No. 430-2020-00145X Agency No. 4V713000719 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 2, 2020, 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., 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. ISSUE PRESENTED The issue is whether Complainant established that the Agency subjected him to discrimination or harassment based on disability or race, or in reprisal for prior protected EEO activity. 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. 2020004057 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Automotive Technician at the Agency’s Vehicle Maintenance Facility in Charlotte, North Carolina. Complainant stated that in August or September 2018, he was “removed” from all work due to medical restrictions related to his ongoing anxiety and depression. Report of Investigation (ROI) at 57-58. Complainant stated that management officials did not inform him about the District Reasonable Accommodation Committee, the reasonable accommodation process, or the leave donation program. ROI at 61, 65. On April 9, 2019, Complainant’s supervisor and a Manager (M1) mailed Complainant a removal notice for Absence Without Official Leave (AWOL) and Failure to Follow Instructions. The Agency noted that Complainant was AWOL since September 27, 2018, and he failed to respond to an Absence Inquiry letter requesting that Complainant report to work or provide acceptable documentation to support his absence. The Agency also stated that Complainant failed to report for an investigative interview on February 19, 2019, and he did not report his inability to attend the interview. The Agency noted that there had been no correspondence from Complainant, despite repeated attempts to contact him, and it concluded that Complainant’s removal was appropriate. ROI at 175-79. On August 14, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to discriminatory harassment on the bases of race (African-American) and disability (mental), and in reprisal for prior protected EEO activity (Agency Case Nos. 4V-713-0002-17, 4V-713-0008-18, 4V-713-0003-18), when: 1. on unspecified dates, management did not inform Complainant about the reasonable accommodation process and failed to offer a reasonable accommodation; 2. on unspecified dates, management failed to make Complainant aware of, or offer him the opportunity to participate in, the leave donation program; and 3. on or about April 9, 2019, Complainant was issued a Notice of Removal. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request. The AJ remanded the complaint to the Agency to issue a final decision, pursuant to 29 C.F.R. § 1614.110(b). On April 2, 2020, the Agency issued a final decision. The Agency found that Complainant established a prima facie case of discrimination based on reprisal, but not race or disability. The Agency noted that Complainant did not provide any medical documentation showing that he has a disability, and that he did not establish that he was a qualified individual with a disability. 2020004057 3 The Agency found that Complainant stated that his doctor removed him from all work, and that he did not present any plausible accommodations that would enable him to perform his duties. Accordingly, the Agency determined that Complainant did not show that the Agency failed to accommodate him. For claim 1, the Agency determined that, while Complainant alleged that a White comparator (C1) was offered a reasonable accommodation, he did not provide any details of C1 being offered, or receiving, a reasonable accommodation. Regarding claim 3, Complainant identified another comparator (C2); however, the Agency found that C2 was also issued a Notice of Removal for AWOL. The Agency determined that management officials provided legitimate nondiscriminatory reasons for their actions and that Complainant did not show that the reasons were pretextual. The Agency also found that Complainant did not establish a hostile work environment. The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. Complainant filed the instant appeal but did not submit any arguments on appeal. The Agency responds to Complainant’s appeal, noting that Complainant did not file an appeal brief and has not identified any grounds for a reversal of the final decision, and it requests that the Commission affirm its final decision. 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”). ANALYSIS AND FINDINGS Reasonable Accommodation 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 he needs an adjustment or change at work for a reason related to a medical condition. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002) at Q.1. Here, Complainant stated that he requested a reasonable accommodation to have the Agency extend his leave to keep his job available. However, Complainant did not provide any supporting details or evidence of his reasonable accommodation request. 2020004057 4 Specifically, Complainant was asked who he made his request to, but he did not name any management official. ROI at 58-59. We also note that Complainant did not provide an approximate date for any reasonable accommodation request. As such, we find that Complainant did not show that he informed the Agency of a desire to request a reasonable accommodation. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability and race, and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claims 1 and 2, M1 stated he was unaware of any “offer” to C1 or any other employee, and that Complainant failed to report to work or respond to any notifications. Another manager stated that a Shop Steward informed employees about the leave donation program when he was aware of these types of issues. ROI at 87, 89, 108. Regarding claim 3, M1 stated that Complainant’s removal was due to his failure to report for duty and failure to call in to report his absences. ROI at 95. 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 addition, a review of the record shows that Complainant made bare assertions that management officials discriminated against him, which are insufficient to prove pretext or that their actions were discriminatory. 2020004057 5 Further, 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 Tex. Dep’t of Cmty. 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. As such, we find that Complainant did not establish that the Agency discriminated against him based on disability or race, or in reprisal for prior protected EEO activity. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of his alleged bases. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to harassment based on disability or race, or in reprisal for prior protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency subjected him to discrimination or harassment based on disability or race, or in reprisal for prior protected EEO activity. 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). 2020004057 6 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. 2020004057 7 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 7, 2021 Date