[Redacted], Jane S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2020004704 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jane S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020004704 Agency No. 4K-300-0329-19 DECISION On May 20, 2020, 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 April 20, 2020 final decision concerning her 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., 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. For the following reasons, the Commission VACATES the Agency’s final decision and REMANDS the complaint to the Agency for processing in accordance with the ORDER below. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Post Office in Lawrenceville, Georgia. On November 1, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of color (White), disability (knee), and age (55) when: 1. on July 12, 2019, Complainant was removed from her detail assignment due to timekeeping errors; and 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. 2020004704 2 2. on July 12, and ongoing, management failed to provide Complainant with an accommodation, therefore she felt forced to retire and use 10 weeks of leave prior to retiring. Complainant asserted that she suffered a knee injury in April 2016, and that it will not heal on its own. She contended that she provided documentation to her manager at the time in support of her limitation, which was that she could not walk up and down hills. Because delivering the mail requires Complainant to walk up and down hills, she could not perform the duties of her positions, and she was detailed as an accommodation. At some point, Complainant was detailed as an ad-hoc Driver Safety Instructor. The record is unclear as to Complainant’s physical location or who her supervisors were at the time. The Atlanta District Safety Manager (Safety Manager) said that Complainant “is a letter carrier whose duties [she] does not manage.” The Safety Manager noted that, as a trainer, Complainant conducted classroom, lot, and street training for new hires and employees requiring refresher training. Complainant worked depending on the number of newly-hired drivers. Complainant asserted that her detail ended on July 12, 2019, and she returned to Lawrenceville. In her affidavit, Complainant explained that a manager said her detail ended because she committed several timekeeping errors, including that she did not clock out or in for lunch on July 6, 2019. Complainant claimed that she was assigned to perform street observations and asked about clock rings, but another employee said not to worry about it. Complainant further alleged that she spoke with another employee while she was detailed who said that another city carrier committed far more timekeeping infractions than she did but did not suffer similar adverse actions. The Safety Manager explained that she had discussed Complainant’s failure to properly enter her time for about eight months, but Complainant continued to have timekeeping problems, so she was removed from her assignment. However, the Safety Manager admitted that she did not have access to Complainant’s time records, and that access remained with managers at Complainant’s home station, which was Lawrenceville. When Complainant returned to Lawrenceville, she told her manager that she could not carry her route because of her knee. Complainant contended that her manager said, “I know, but you’re a short timer anyway.” Upon her return to Lawrenceville, Complainant claimed she had no work to do. Complainant said she was forced to take leave because she needed a paycheck, and therefore had “no choice other than to retire.” The Agency did not obtain affidavits from any management at Lawrenceville or otherwise seek further documentation from either side. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant responded that the report of investigation was inadequate and did not contain information relevant to her claim. 2020004704 3 Complainant asked the Agency to investigate further by obtaining time records related to her and to two other employees. The Agency construed Complainant’s response as a failure to request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f) and 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 her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant maintains that the Agency failed to conduct a complete investigation. In addition to her response to the Agency’s report of investigation, Complainant notes that the investigation did not seek or contain her medical records, which would reveal evidence tending to demonstrate her disability and related accommodations. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that the agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id.; EEO MD- 110 at Chap. 6, § IV.B. An investigation must include “a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the Complainant's group as compared with the treatment of similarly situated employees...and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.” Id. at Chap. 6, § IV.C. Also, an investigator must identify and obtain “all relevant evidence from all sources regardless of how it may affect the outcome.” Id. at Chap. 6, § VI.D. Upon review, we find that the record is insufficient to allow a determination on the merits of the instant formal complaint. Here, the record is inadequate as to both claims. With respect to Claim (1), Complainant is correct that there is no evidence tending to support or detract from her claims that she was discriminated against when the Agency ended her assignment over timekeeping errors. At most, the Agency obtained an affidavit from the Safety Manager stating that Complainant’s timekeeping was handled by management at Lawrenceville, and that there were errors. However, these records were never produced in the investigation and the Agency did not make any attempt to obtain information from Lawrenceville management. The record contained affidavits from Complainant, the Manager, and a Supervisor, Customer Service in Lawrenceville (Supervisor). Supervisor testified that she had no knowledge regarding Complainant’s allegations because she was not within Complainant’s supervisory chain until much later. However, Supervisor identified Complainant’s manager and Postmaster. The investigator did not obtain affidavits from either person. The record contains similar deficiencies with respect to Claim (2). The investigation reveals no attempt to obtain information related to any reasonable accommodation process that Complainant may been involved with. 2020004704 4 As evidenced by her affidavit, the crux of Claim (2) is that the Agency accommodated Complainant by sending her on a detail that fit her accommodations but when she returned to Lawrenceville at the end of her detail, the Agency made no further attempt to accommodate her. However, the record is completely devoid of any information tending to shed light on this allegation. We therefore find that the record is insufficiently developed, and that a supplemental investigation is required to determine whether discrimination occurred. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s final decision and REMAND the matter to the Agency for further processing in accordance with the ORDER below. ORDER Within 60 calendar days of the date this decision is issued, the Agency shall conduct and complete a supplemental investigation that shall include, at a minimum, the following: 1. Affidavits from all individuals set forth in the affidavits of Complainant, the Safety Manager, and the Supervisor as possible witnesses to Claims (1) and (2). 2. All timekeeping records that are relevant to Complainant’s allegation in Claim (1). 3. All documents relevant to Complainant’s requests for reasonable accommodation, including any documents evidencing the Agency’s response and interactive process regarding Complainant’s request for reasonable accommodation. These documents should also include any medical documents relevant to the request for accommodation. 4. A supplemental affidavit from Complainant with further details regarding her requests for reasonable accommodation and any attempts by the Agency to accommodate her. 5. Any other affidavits or documentation not specifically requested in this Order, and consistent with this decision, which may be relevant in determining the merits of Complainant’s complaint. 6. If the EEO investigator is unable to obtain relevant documentary evidence from the Agency or obtain investigative affidavits from relevant witnesses, the EEO investigator shall document the attempt(s) to obtain the evidence and/or affidavits and provide an explanation of why the documents or affidavits could not be obtained. 7. Complainant shall have the opportunity to review the affidavits and other evidence and submit a rebuttal affidavit. The Agency shall issue to Complainant a copy of the supplemental investigative file and shall notify Complainant in writing of her right to request a hearing before a Commission AJ or the issuance of an Agency decision, unless the matter is otherwise resolved. If Complainant requests an Agency decision without a hearing, the Agency shall issue its decision within 60 days of receipt of Complainant's request. 2020004704 5 In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission Order to investigate a complaint. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the directed action has been taken. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2020004704 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). 2020004704 7 COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 September 27, 2021 Date