[Redacted], Horace H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 13, 2021Appeal No. 2020004313 (E.E.O.C. Dec. 13, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Horace H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004313 Hearing No. 450-2017-00115X Agency No. 4G-752-0173-16 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 June 6, 2019, final decision 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 decision. BACKGROUND During the relevant time, Complainant worked as a Manager of Customer Services, EAS-22, at the Agency’s Medrano Post Office in Dallas, Texas. Report of Investigation (ROI), at 12. According to Complainant, he suffers from certain medical conditions, including hypertension, an ankle injury, and diabetes. ROI, at 113. Complainant averred that he provided medical documentation to his supervisors regarding his conditions, reflecting that he cannot exceed the limits on standing imposed by his doctor, and cannot engage in excessive walking, bending, stooping, squatting, lifting, or pulling. Id. 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. 2020004313 2 On December 29, 2015, the Agency posted a vacancy announcement for a Manager of Customer Services position at its Spring Valley Station in Dallas, Texas. Id. at 289-291. Complainant applied for the position through the Agency’s “eCareer” system, but was not interviewed for the position. On or around February 24, 2016, Complainant learned that he was not selected for the position. Complainant stated he was not provided with a reason for why he was not granted an interview nor selected. Id. at 115. He noted that he timely applied for the position and met all the criteria and qualification requirements for the position, because it was for his current level (EAS- 22) and simply at a different facility. Id. at 116. According to the Customer Operations Service Manager (COSM), who served as the selecting official for the position, a three-person panel was convened to determine which candidates would be interviewed for the position. Id. at 182-183. The COSM averred that the panel reviewed each application, decided which candidates to interview, and forwarded her the names of the top-rated applicants for the position. Id. The COSM further explained that the selectee was chosen because he interviewed well, had the required experience, and spoke with confidence about the challenges facing the station. Id. at 184. On January 26, 2016, the Agency also posted a vacancy announcement for a Postmaster position at the its Bessemer, Alabama Post Office. Id. at 292-294. Complainant applied for the position and was interviewed. However, on March 11, 2016, Complainant learned that he was not selected for this position either. According to the Manager of Post Office Operations, she and the Postmaster were the selecting officials for the vacancy, and they assessed the candidates based on 15 questions presented during each interview. Id. at 225. The Manager of Post Office Operations stated that Complainant was ultimately not selected because he did not score as high as the selected employee did during his interview. Id. at 227. According to Complainant, on March 4, 2016, he became aware that the Area Manager had charged him with Annual Leave that he had not requested. The Area Manager explained that Complainant never brought this matter to his attention, and his leave would have been changed had he asked him. Complainant’s attendance records reflected, however, that he was charged with Military leave on March 4, 2016, and not with Annual Leave. Id. at 104-105, 267. Moreover, Complainant averred that he submitted a leave slip for Annual Leave, for June 6, through June 10, 2016, but he was charged with Leave without Pay (LWOP). Complainant also stated that from June 13, 2016, until June 24, 2016, he was charged with Military Leave. Id. at 128. The Area Manager acknowledged that Complainant was charged with a combination of LWOP and Military Leave for June 6, 2016, through June 24, 2016. However, the Area Manager explained that, although Complainant requested Annual Leave in place of Military Leave, Complainant’s Military orders were not received until Complainant was already out on leave. Id. at 153. The Area Manager further explained that the Military orders submitted by Complainant only covered five days, and Complainant had never brought this leave issue to his attention. Id. 2020004313 3 On May 1, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (ankle, diabetes, and hypertension) and in reprisal for prior protected EEO activity2 when: 1. On or around February 24, 2016, he was informed he was not selected for the Spring Valley Station position; 2. On or around March 11, 2016, he was informed he was not selected for the Bessemer, Alabama Postmaster position; 3. On or around April 20, 2016, he became aware that on March 4, 2016 and other dates to be specified, he was charged Annual Leave that he did not request; and 4. From June 6, 2016, through June 24, 2016, he was charged LWOP and Military Leave, instead of the Annual Leave he had requested. Following 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 timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency specifically found that Complainant only established a prima facie case of reprisal discrimination with regard to actions by the Area Manager and the Postmaster, as they were named as responsible management officials in Complainant’s prior EEO complaint. Further, the Agency determined that Complainant did not establish a prima facie case of discrimination based on disability, as he did not show that he is an individual with a disability within the meaning of the Rehabilitation Act. Assuming, arguendo, that Complainant established a prima facie case based on disability and reprisal, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not establish were pretextual. The Agency noted that Complainant did not offer any witness statements or documentation supporting his claims of discrimination. 2 Complainant filed a prior EEO complaint on November 25, 2015, Agency No. 4G-752-0288- 15, naming the Area Manager and a Postmaster as responsible management officials. ROI, at 104, 240-241. 2020004313 4 CONTENTIONS ON APPEAL Complainant did not file a brief on appeal. The Agency requests that we affirm its final decision finding no discrimination. 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”). Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n. 13. 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). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a 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). A complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). To establish a prima facie case of disability discrimination, Complainant had to demonstrate that: (1) he is an individual with a disability; (2) he is “qualified” for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination, i.e., Complainant must make a plausible showing that there is a nexus between the disabling condition and the disputed adverse actions. See Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001); Kennedy v. U.S. Postal Serv., EEOC Appeal No. 01993691 (Nov. 21, 2001); Visage v. Dep't of the Air Force, EEOC Request No. 05940993 (July 10, 1995). 2020004313 5 In the instant case, we find that Complainant has not established a prima facie case of discrimination based on reprisal or disability with regard to claims 1-3. We note that in his prior EEO complaint (Agency No. 4G-752-0288-15), Complainant only named the Area Manager and a Postmaster as responsible management officials. ROI, at 104, 240-241. However, neither the Area Manager nor this Postmaster were involved in the selection processes in claims 1 and 2. Moreover, all the selecting officials involved in the non-selections denied having knowledge of Complainant’s prior EEO activity. Complainant has not alleged that any of the panel members were involved or aware of his prior protected EEO activity with respect to claim 1 or 2. As for a prima facie case of discrimination based on disability, regarding claims 1 and 2, Complainant has not established a nexus between his medical conditions and his non-selections. In so finding, we note that the selecting officials all denied having knowledge of Complainant’s medical conditions, and Complainant has not alleged that the selection panels were aware of his medical conditions. Regarding claim 3, there is no evidence that Complainant was subjected to an adverse action and therefore he has failed to establish a prima facie case. As noted above, Complainant’s attendance records reflect that he was charged with Military leave on March 4, 2016, and not Annual Leave. Id. at 104-105, 267. With respect to claim 4, we find that, assuming arguendo that Complainant established a prima facie case based on disability and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Area Manager explained that Complainant requested Annual leave in place of Military Leave, but Complainant’s Military orders were not received until Complainant was already out on leave. Id. at 153. The Area Manager further explained that the Military orders submitted by Complainant only covered five days, and Complainant never brought this leave issue to his attention. Id. Therefore, we find that Complainant has not established that the Agency's reasons were pretextual based on his protected classes or that the Agency was motivated by discriminatory animus or retaliatory animus. CONCLUSION Based on a thorough review of the record and contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. 2020004313 6 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). 2020004313 7 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 December 13, 2021 Date Copy with citationCopy as parenthetical citation