[Redacted], Harlan P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2020000600 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harlan P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000600 Agency No. 4G-720-0056-18 DECISION On September 20, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 16, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s El Dorado Post Office in El Dorado, Arkansas. On August 3, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African American), disability (Lumbar Radiculitis and Neuritis, Lumbar Disc Bulge, and Spondylolisthesis), and in reprisal for prior EEO activity (Agency Nos. 4G-720-0050-16; 720-0036-17; 4G 720-0042-17) when, since April 27, 2018, he was not accommodated when he was not permitted to return to work. The record reflects that on February 12, 2019, Complainant filed an appeal with the Merit Systems Protection Board (MSPB). However, the MSPB judge dismissed Complainant’s appeal for lack of jurisdiction. 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. 2020000600 2 By correspondence dated March 25, 2019, the Agency transmitted a copy of the investigative file to Complainant and advised his of his right to request a hearing before an EEOC Administrative Judge or a final decision in accordance with 29 C.F.R. § 1614.302(b). Thereafter, on March 27, 2020, following an investigation, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation Under the Rehabilitation Act and the Commission’s implementing regulations, a federal agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Here, we will assume for purposes of analysis only, and without so finding, that Complainant is an individual with a disability. The record developed during the investigation of this complaint reflects that Complainant, a City Carrier, filed a workers’ compensation claim, asserting that his back conditions were work- related.2 The Postmaster confirmed that on March 30, 2018, Complainant faxed her a CA-17 “Duty Status Report” form for workers’ compensation claim and PS Form 3971 “Request for Notification of Absence.” Therein, Complainant’s medical restrictions, as indicated by his physician, were as follows: no lifting more than 20 pounds; sitting 0-1 hour per day; standing 0-1 hours; walking 2 hours; climbing 1 hour; kneeling 30 minutes; bending/stooping 0-1 hour; twisting 0-1 hour; simple grasping 4-6 hours; fine manipulation 0-1 hours; and reaching above the shoulder 1-2 hours per day. The Postmaster stated that she could not determine what limited duty position could be offered to Complainant that was within these medical restrictions. The Postmaster stated that she then forwarded Complainant’s medical documentation to the Manager, Health and Resource Management, for advice. The Manager, Health and Resource Management (African-American) explained the Department of Labor’s Office of Workers’ Compensation (OWCP) Programs denied Complainant’s workers’ compensation claim. She stated that Complainant was informed that his restrictions fell under “light duty” which meant he was now under the reasonable accommodation process which required different forms to be completed. The Manager stated that Complainant was provided with the appropriate forms and an explanation of the reasonable accommodation process. 2 It appears Complainant asserted his back was first injured in late summer 2017. 2020000600 3 The Occupational Health Nurse Administrator (OHNA) (African American) stated that whenever an employee requested or was referred for reasonable accommodation, the employee had to complete the Reasonable Accommodation Committee (RAC) Form A, Reasonable Accommodation Request and RAC Form B, Medical Information and Restriction Assessment. She stated that on April 26, 2018, she sent a request to Complainant to complete the reasonable accommodation forms. When the OHNA did not get a response from Complainant, she sent a second request on May 14, 2018, for Complainant to submit the forms by no later than May 30, 2018 for processing. However, she stated that on June 5, 2018, she received an incomplete medical form Complainant and she informed him that his workers’ compensation forms were not sufficient. The Postmaster stated that she first became aware that Complainant was required to submit additional medical documentation during a May 31, 2018 District Reasonable Accommodation Committee (DRAC). She averred that the next DRAC meeting on June 14, 2018, she became aware that Complainant failed to submit all the medical documentation requested. The Postmaster stated that on May 31, 2018, she explained to Complainant that he must submit a RAC Form B to determine if his medical condition was either temporary or permanent. However, the required documentation was not fully competed and thereafter, Complainant requested disability retirement. The record contains a copy of the Reasonable Accommodation Committee (RAC) Chairperson’s letter dated July 9, 2018 to Complainant. Therein, the RAC Chairperson stated that the committee received notice that Complainant was approved for disability retirement effective June 25, 2018. As a result, the RAC Chairperson stated that the committee closed his case. Based on this evidence, we concur with the Agency’s conclusion that Complainant had not shown that management failed to provide him with a reasonable accommodation. It is clear from the evidence that the Agency was engaged in a good faith effort to make a decision on his reasonable accommodation request when he took a disability retirement. Any delay in the processing of his request appears to have resulted from his own failure to submit the requested medical documentation. 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 case of discrimination by presenting facts which, 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 Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020000600 4 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 based on 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). Agency management articulated legitimate, non-discriminatory reasons for its actions as more fully discussed above. Here, Complainant failed to meet his ultimate burden of proving, by a preponderance of the evidence, that the Agency management acted on the basis of a prohibited reason. In sum, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race or prior 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. 2020000600 5 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. 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. 2020000600 6 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 June 8, 2021 Date