[Redacted], Herman P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 19, 2021Appeal No. 2020000312 (E.E.O.C. May. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herman P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000312 Hearing No. 420-2019-00079X Agency No. 1G-350-0165-17 DECISION On September 11, 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 August 15, 2019, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 order. ISSUES PRESENTED The issues presented concern whether the Agency subjected Complainant to discrimination based on disability when it required Complainant to submit medical documentation to substantiate his request for FMLA leave due to medical reasons and denied him paid sick leave when he failed to do so. 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. 2020000312 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Cahaba Heights Post Office in Birmingham, Alabama. On December 6, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (migraines) and reprisal for prior protected EEO activity when:2 1. Since July 13, 2017, the Agency has required Complainant to provide unnecessary medical documentation for intermittent leave under the Family and Medical Leave Act (FMLA) in contravention of Agency policy and a previously granted reasonable accommodation; and 2. On July 28, 2017, he became aware that he had not been paid sick leave under FMLA for the dates of July 13, and 15, 2017, which he had requested due to his migraines. On December 28, 2017, the Agency notified Complainant that it would only accept claim 2 for investigation. With regard to claim 1, the Agency determined that dismissal was warranted because Complainant did not suffer any personal loss related to a term, condition, or privilege of employment. In dismissing the claim, the Agency emphasized that Complainant did not assert that he had been subjected to any corrective or adverse action as a result of this incident. At the conclusion of the investigation into claim 2, 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 timely requested a hearing. On July 29, 2019, the AJ issued a sua sponte decision without a hearing in favor of the Agency.3 The AJ found that Complainant failed to show that the Agency treated similarly situated employees outside of Complainant’s protected classes more favorably. 2 The record reflects that the Agency and Administrative Judge each framed the claims in a different manner than those raised in Complainant’s formal complaint. As neither the Agency nor the Administrative Judge provided an explanation for framing the claims differently than Complainant, we have conducted an independent review of the complaint. We find that a fair reading of Complainant’s formal complaint and appellate brief reflects the claims as listed herein. See Report of Investigation (ROI) at 00008 and Appellate Brief at 1-2. 3 In issuing the decision, the AJ vacated without explanation an earlier order that had granted Complainant’s request to amend his claims. 2020000312 3 In so finding, the AJ acknowledged that the Agency had previously allowed Complainant to return to work without submitting medical documentation; however, the AJ found that the Agency had legitimate, nondiscriminatory reasons for requesting medical documentation for the dates at issue, as the record reflected that management believed that Complainant had left work “as a show of defiance” and exhibited “an abusive pattern of taking off Saturdays.” The AJ concluded that the accommodation provided did not exempt Complainant from ever having to provide medical documentation, and that the Agency did not violate the Rehabilitation Act when it requested medical documentation. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL Through his attorney, Complainant contends that the AJ violated the Commission’s directive when she failed to give him notice of intent to dismiss the complaint and denied him an opportunity to brief the issues. He argues that the AJ, at minimum, should have allowed him to engage in discovery and file a brief on the matter. Complainant maintains that the AJ’s failure prejudiced him because he was unable to proffer evidence showing that he did in fact have a reasonable accommodation in place (i.e., FMLA paperwork). In this regard, he cites to Thompkins v. U.S. Postal Serv., EEOC Appeal No. 01A24083 (Aug. 20, 2004) and Hudson v. U.S. Postal Serv., EEOC Appeal No. 0120093843 (June 6, 2011) and for the proposition that his request for sick leave under FMLA was indeed a request for reasonable accommodation. As for the merits of the complaint, Complainant asserts that the Agency violated the Rehabilitation Act by refusing “to honor [his] accommodation regarding the production of a medical excuse after his perceived misconduct regarding the incident involving his untucked shirt and perceived pattern of Saturday absences.” He argues that the Agency’s request constituted an “inappropriate use of discipline and a failure to comply with [his] reasonable accommodation,” as the Agency “did not simply impose discipline but withheld his pay.” Furthermore, Complainant maintains that the Agency requested medical documentation “without any notice to [him] that any perceived regularity of Saturday absences presented any kind of undue hardship for the Agency.” He emphasizes that “[t]he irregularity of the request for a medical excuse, coupled with the difficulty of obtaining such an excuse given Complainant’s disability amount[ed] to a hardship in direct violation of his reasonable accommodation.” Complainant also alleges that the Agency treated him in a disparate manner because of his disability. Specifically, Complainant asserts that the Agency admitted to requiring him to produce medical documentation because of his repeated use of FMLA leave on Saturdays, even though his FMLA leave was protected under the Rehabilitation Act, as it was part of his reasonable accommodations. He contends that “[t]his admission alone demonstrates that the Agency was demanding the documentation based on protected activity that Complainant was engaged in, namely taking medical leave under the FMLA. 2020000312 4 He further maintains that the Agency’s imposition of “additional requirements are on their face discriminatory in nature, based on Complainant’s previously granted reasonable accommodation,” as no other employee was forced to provide medical documentation for absences of three days or less. Finally, Complainant asserts that the Agency took the alleged actions in reprisal for his prior protected EEO activity. In this regard, Complainant notes that the Agency admitted that it demanded additional documentation from him because of “the perceived regular occurrence of [his] absences on Saturdays from work, despite the fact [that] those absences were protected under FMLA.” He contends that this admission shows that the Agency demanded documentation based on his protected activity. For these reasons, Complainant requests that the Commission reverse the Agency’s final order and issue a decision in his favor. The Agency opposes the appeal and requests that the Commission affirm it final order, which implemented the AJ’s finding of no discrimination. STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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 We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the 2020000312 5 evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. As an initial matter, we will first address Complainant’s contentions regarding the propriety of the AJ’s issuance of a sua sponte decision without a hearing. In this regard, Complainant asserts that the AJ violated EEO MD-110, when she failed to give him notice of her intent to dismiss the complaint and denied him an opportunity to brief the issues. Under our regulations, an AJ may issue a decision without a hearing on his or her own initiative if the AJ determines that some or all facts are not in genuine dispute. 29 C.F.R. § 1614.109(g)(3) Prior to doing so, the AJ must first give notice to the parties and provide them with an opportunity to respond in writing. Id. Having reviewed the record, we agree with Complainant that the AJ improperly issued a decision without a hearing, as the record clearly shows that the AJ issued the decision without first notifying the parties and allowing them to respond. Further on appeal, we find that Complainant has not shown that there are genuine issues of material fact or credibility that merited a hearing. Therefore, we find that the AJ’s error was harmless and does not warrant a remand for a hearing. Claim 2 - Denial of Reasonable Accommodation Under the Commission’s regulations, an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); 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); Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). We note that an agency cannot request documentation in response to a request for a reasonable accommodation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the agency with sufficient information to substantiate that he or she has a disability under the Rehabilitation Act and needs the reasonable accommodation requested. Id. However, an agency may ask an individual for reasonable documentation about his or her disability and functional limitations when the disability or the need for accommodation is not obvious. Id. at Q. 6. Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). 2020000312 6 Assuming arguendo that Complainant is a qualified individual with a disability, we find that the Agency did not violate the Rehabilitation Act by declining to grant Complainant’s request for paid sick leave under FMLA to cover his absences on July 13, and 15, 2017. While we acknowledge Complainant’s contention that his request constituted a request for reasonable accommodation, we note that an individual is not entitled to a reasonable accommodation if his or her disability or need for reasonable accommodation is not obvious, and the individual refuses to provide the reasonable documentation requested by the agency. See Collins v. Envtl. Prot. Agency, EEOC Appeal No. 0120081048 (Jan. 21, 2011). Here, by Complainant’s own admission, he refused to comply with the Agency’s request for additional medical documentation because he believed that he did not have to provide the requested medical documentation, as he had already been granted FMLA for Postal Year 2016.4 See Appellate Brief at 4 (“Complainant did not provide medical documentation to the Agency for this absence”). However, we note that Complainant’s FMLA paperwork clearly shows that his FMLA approval was valid for one postal leave year and had expired by the time he requested leave in July 2017 (i.e., Postal Year 2017). As the record clearly shows that Complainant did not provide the Agency with sufficient medical documentation to substantiate his need for leave in July 2017, we conclude that the Agency did not act discriminatorily when it denied his request. Claim 1 -Unlawful Medical Inquiry To the extent Complainant contends that the Agency subjected him to an unlawful medical inquiry by directing him to provide medical documentation, we find such contention to be unpersuasive. While the Rehabilitation Act places certain limitations on an employer's ability to undertake disability-related inquires or require medical examinations of employees, the Rehabilitation Act nevertheless allows an employer to make a medical inquiry or require a medical examination so long as such inquiries are job related and consistent with business necessity. See C.F.R. §§ 1630.13(b), 1630.14(c). Here, the record shows that the Agency directed him to provide additional medical documentation to substantiate his request for leave on the dates at issue because Complainant’s supervisor believed that Complainant was angry at being directed to tuck in his shirt and exhibited a pattern of leave abuse by regularly taking Saturdays off. We find such requests, under these circumstances, to be job related and consistent with business necessity and not violative of the Rehabilitation Act. Claims 1 and 2 - Disparate Treatment For Complainant to prevail on his claim of disparate treatment, he must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). 4 As reflected in the ROI, a postal leave year begins the first day of the first full pay period in the calendar year (i.e., second pay period). ROI at 00082. 2020000312 7 Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency's explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination based on the alleged bases, we find that the Agency has articulated a legitimate, nondiscriminatory reason for its actions. As reflected in the ROI, Complainant’s supervisor stated that she required Complainant to submit medical documentation because Complainant left work angrily and took FMLA leave after being directed to tuck in his shirt. Complainant’s supervisor also attributed the increased scrutiny to Complainant’s tendency to regularly call in sick on Saturdays. Complainant’s supervisor maintained that she placed Complainant on leave without pay when Complainant failed to provide the adequate medical documentation. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext, Complainant maintained that the terms of his approved FMLA leave did not require him to provide medical documentation every time unless he exceeded the number of approved days. Furthermore, Complainant asserted that the Agency did not require any other employee to provide medical documentation for absences lasting three days or less. Having reviewed the record, we find that Complainant cannot persuasively establish pretext. As discussed above, our review of Complainant’s FMLA paperwork fails to demonstrate that Complainant was exempted from ever having to provide medical documentation. While we considered Complainant’s contention that the Agency did not require other employees to submit medical documentation for absences lasting three days or less, we do not find such contention to be persuasive because we are unable to find that these individuals were similarly situated to Complainant. Indeed, we find no persuasive evidence demonstrating that Complainant’s chain of command treated non-disabled employees who were believed to be engaged in leave related misconduct more favorably. We also find no evidence that the Agency’s actions were based on retaliatory animus. We, therefore, conclude that Complainant cannot prevail on his claim of disparate treatment discrimination. 2020000312 8 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 order. 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. 2020000312 9 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. 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 May 19, 2021 Date Copy with citationCopy as parenthetical citation