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

Equal Employment Opportunity Commission

Jun 28, 2021

Appeal No. 2020000089 (E.E.O.C. Jun. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fredda J.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020000089 Hearing No. 570-2018-00820X Agency No. 6X-000-0046-17 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 18, 2019 final decision 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., 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 During the period at issue, Complainant worked as a Disability Compliance Specialist, EAS-23, at the Agency’s EEO Compliance and Appeals division in Gaithersburg, Maryland. 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. 2020000089 2 On April 6, 2018, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on race (African American), sex (female), disability (asthma), age (YOB: 1964), and in reprisal for prior protected EEO activity2 when: 1. on June 19, 2017, Complainant was notified that her December 12, 2016, request for reasonable accommodation was denied; 2. on or about March 22, 2017, the Agency made an unauthorized request for medical information from Complainant’s doctor; 3. on June 21, 2017, Complainant was instructed to report to work, in violation of her medical restrictions; 4. on or about July 12, 2017, Complainant became aware that someone had submitted an FMLA (Family Medical Leave Act) request on her behalf when she received a letter notifying her that her FMLA request was denied despite her having never made the request; 5. on an unspecified date, Complainant was not selected for the position of Disability Programs Compliance Specialist from the June 2017 job posting after her interview was cancelled; and 6. on September 13, 2017, Complainant was issued a Notice of Proposed Removal for “Medical Inability to Perform the Duties of Your Position” that was upheld via a Letter of Decision on October 18, 2017, with an effective date of November 4, 2017. After its investigation into the accepted claims, 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 requested a hearing, but she subsequently withdrew her request. As a result, the AJ remanded the complaint to the Agency for a final decision. On July 18, 2019 the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.3 The instant appeal followed. 2 The record indicates that Complainant filed prior complaints where she named her first level supervisor (S1) and second level supervisor (S2) as the responsible management officials. 3 The Agency initially dismissed claims 1 and 2 on dismissal grounds, but alternatively decided to discuss these claims on the merits. Therefore, we need not address the Agency’s procedural dismissal of these claims. 2020000089 3 ANALYSIS AND FINDINGS Reasonable Accommodation (Claim 1) Under the Commission's regulations, 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). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. During the period at issue, Complainant was hired as a Disability Compliance Specialist (DCS), EAS 23. A copy of Complainant’s position description states that Complainant is responsible for assisting Local Reasonable Accommodation Committees (LRAC) to ensure that they are properly trained and properly analyzing accommodation requests. Additionally, the DCS employees are domiciled in Area offices to ensure a nexus between headquarters and the Areas. As a result, Complainant’s DCS position required that she provide direct assistance to her assigned Areas/Districts which included conducting onsite evaluations of LRAC processes/case file maintenance and assistive/adoptive technology solutions. Complainant’s supervisor (S1) who is the Disability Manager, explained that Complainant’s position also required that she participate in annual Disability team onsite training and fiscal year strategy meetings. Complainant testified that she had allergies (diagnosed in November 2015) and asthma (diagnosed in March 2016). Complainant explained that these conditions are permanent and have an impact upon her ability to breathe, concentrate, and work. Complainant further explained that her allergies were impacted at work and caused her to have asthma symptoms. Specifically, Complainant indicated that she experienced and uncontrollable cough that made it difficult for her to breath and caused a sore throat and fatigue. We find Complainant has not shown that the Agency violated the Rehabilitation Act as more fully discussed below. 2020000089 4 The record indicates that Complainant notified management on March 23, 2016 that her allergies were impacted at work and caused her to have asthma symptoms.4 Specifically, Complainant indicated that she experienced and uncontrollable cough that made it difficult for her to breath and caused a sore throat and fatigue which resulted in her leaving work early that day. As a result, Complainant requested, in April 2016, that the Agency check the HVAC systems and conduct air quality checks in all the locations (Capital Metro, L’Enfant Plaza, and Waldorf DDC) she was assigned. Complainant further requested to telework five days a week due to her occupational asthma. While the medical documentation from Complainant’s physician confirmed that she had occupational asthma, the documentation indicated that the physician only recommended that Complainant telework or work in a different environment. Subsequently, on July 15, 2016, the Agency provided Complainant with an interim accommodation as her accommodation request with the Reasonable Accommodations Committee (RAC) was still pending. The Agency offered to remove Complainant from the Capitol Metro office (Complainant’s primary office location) and temporarily assigned her to a Processing and Distribution Center in Washington, DC, however, S1 stated that Complainant declined this request. Also, on July 15, 2016, Complainant’s physician submitted a letter that Complainant would need a HEPA filter in her office to clean the air in her room, and he also recommended that the air ducks be cleaned every six months and additionally filters should be added to the system. The record reflects that the Agency conducted indoor air quality studies at the Capitol Metro office on July 21, 2016 and the August 29, 2016 report revealed that the air quality on the sixth floor had not been negatively impacted and was generally good. On September 22, 2016, S1 notified Complainant, by letter, that the RAC had completed review of her request and agreed with her physician’s July 15, 2016 recommendation for a HEPA air filter and the cleaning of the air ducts every six months. Additionally, the RAC approved placing cheese cloth over the vents as a vent cover to capture particles. S1 noted that a copy of the indoor air quality report had been provided to Complainant on August 29, 2016. However, Complainant had not informed S1 whether her physician had reviewed the report following her September 15, 2016 physician’s visit. S1 testified that Complainant returned to work on November 7, 2016 with these accommodations in place. However, on December 12, 2016, Complainant emailed S1 and informed her that her chest was hurting, she had been coughing for the past few weeks, and she requested to work from home five days a week until this matter could be resolved. On December 12, 2016, S1 subsequently provided Complainant the paperwork to submit a reasonable accommodation request. 4 We note that Complainant claimed in a prior formal complaint, Agency No. 6X-000-0046-16, that the Agency failed, since March 24, 2016, to provide her a reasonable accommodation to telework five times a week. The Commission affirmed the Agency’s finding of no discrimination. Complainant v. USPS, EEOC Appeal No. 2019005781 (May 28, 2020); request to reconsider denied, EEOC Request No. 2020004472 (November 3, 2020). 2020000089 5 On December 13, 2016, Complainant submitted her request to telework five days a week. Complainant acknowledged that while the Agency had provided the HEPA filter, vent covers, and cleaned the HVAC ducts, Complainant indicated that her asthma worsened since her return to work resulting in an increased use of her inhaler. Medical documentation from Complainant’s physician indicated that Complainant had occupational asthma and recommended that she telework. The Reasonable Accommodations Committee (RAC), consisting of S1, the Labor Relations Specialist (LRS), and the Human Resources (HR) Specialist, reviewed Complainant’s request to telework five days a week.5 The LRS testified that Complainant submitted the request in January 2017 and a RAC interactive meeting occurred on January 23, 2017. Additionally, the LRS indicated that Complainant added, during the interactive meeting, that she would never be able to attend meetings, trainings, or staff meetings in-person. S1 also indicated that Complainant’s physician noted that she could not leave her home to work except for twice a year depending on her asthma stabilization. Consequently, the LRS stated that Complainant’s request directly impacted her job duties, it placed an undue hardship on the Agency, and consequently, the LRS recommended that Complainant’s request be denied. Here, the accommodation Complainant requested (to telework five days a week) would not have enabled her to perform the essential functions of her DCS position. As previously stated, Complainant’s position required her to conduct onsite evaluations of LRAC processes/case file in three locations in addition to performing in-person annual training. Reasonable accommodation is mainly designed to enable an employee to perform the essential functions of the position of record. If that is not possible, reassignment to a vacant, funded position can also be a required reasonable accommodation. Here, however, there is no evidence that Complainant sought a reassignment to another vacant funded position. Moreover, Complainant has not presented any evidence to suggest that, more likely than not, there was another vacant, funded position available for which she was qualified and could have been reassigned to during the relevant period. For the reasons stated above, we conclude that Complainant failed to prove the Agency violated its duty under the Rehabilitation Act to reasonably accommodate her disability. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of 5 While S1 was part of the RAC, the LRS testified that S1 excused herself. 2020000089 6 Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The record reflects that the Agency articulated legitimate, non-discriminatory reasons for its actions. Medical Information Request (Claim 2) The LRS stated that he requested medical information from Complainant’s physician to clarify medical documentation which had previously been submitted. The LRS explained that Complainant’s initial medical documentation recommended that she telework. However, the LRS noted that during the RAC interactive meeting, Complainant stated that she could not and would not leave her home for work-related activities. Consequently, the LRS indicated that he needed clarification on Complainant’s condition concerning her inability to leave her home. The LRS acknowledged that Complainant objected to him contacting her physician regarding this matter as she had not signed a PS Form 2488 authorizing direct communications with her physician. However, the LRS stated that in this instance he did not believe that he needed Complainant’s permission, because medical documentation had already been provided and he was merely seeking clarification on the submission in light of Complainant’s statements during the RAC meeting. The record includes a copy of the LRS’s March 22, 2017 letter to Complainant’s physician. In the letter, the LRS stated that Complainant indicated that she was “unable to attend any events outside of her home and would have to participate by either web conferencing or telephone.” The LRS noted that Complainant’s request was a “severe restriction and burdensome on her manager,” and asked the physician to provide additional information regarding the scope of Complainant’s condition to better understand the extent of Complainant’s limitations. 2020000089 7 Instruction to Return to Work (Claim 3) S1 testified that after Complainant’s reasonable accommodation request was denied on June 21, 2017, she informed Complainant that she was expected to return to work by July 10, 2017. S1 reiterated that the Agency took many steps to ensure that Complainant’s work environment was safe. Specifically, S1 explained that the air quality assessments indicated no issues or need for additional testing, and the Agency provided Complainant the HEPA air cleaner filters and vent covers for her office. A copy of the June 21, 2017 letter from S1 to Complainant indicates that S1 had been notified of the RAC’s decision to deny Complainant’s request for reconsideration, and S1 informed Complainant that she was expected to return to work. FMLA Request (Claim 4) S1 acknowledged that she was the management official who provided Complainant information about her FMLA rights. S1 explained that once an employer learns that an employee may be eligible for a FMLA-qualifying reason, the employer should notify the employee of his/her eligibility to take FMLA. The record includes a notice of eligibility for FMLA leave indicating that Complainant was not eligible for FMLA leave. There is no indication on the form as to who submitted the FMLA request. Non-selection (Claim 5) S1 indicated that Complainant had been scheduled for an interview for the position at issue. However, S1 explained that she cancelled Complainant’s interview after Complainant confirmed that she was not in a work status at the time. S1 indicated that it was her understanding that an employee should be in a work status, not leave without pay status, to participate in an interview. Nevertheless, S1 stated that no one was selected for the June 2017 posting. Notice of Proposed Removal (Claim 6) S1 testified that she issued the proposed removal because Complainant was medically unable to perform the essential functions of her position. S1 indicated that her supervisor (S2) made the final decision to terminate Complainant’s employment. The record includes a copy of the October 18, 2017 letter, issued by S2, affirming the decision to remove Complainant. The letter indicates that Complainant was charged with medical inability to perform the duties of her position. The letter notes that Complainant had been absent several weeks since March 24, 2016, and has been in leave without pay status since April 17, 2017. The letter further notes that Complainant indicated during the RAC process that she could only perform job functions remotely and by phone and could attend work events outside of her home 2020000089 8 only twice a year. As a result, the letter states that Complainant would not be able to perform, due to her medical condition, the essential functions of her position which required in-person attendance. Finally, the letter mentions that there were no vacant-funded positions that Complainant could be placed as an accommodation within her work restrictions. A copy of Complainant’s SF 50 indicates that Complainant’s employment was terminated effective November 25, 2017, and states the reason for the termination as “administrative separation disability - medical inability to perform duties of your position.” After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, sex, disability, age and in reprisal for prior protected EEO activity. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2020000089 9 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. 2020000089 10 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 June 28, 2021 Date