[Redacted], Jarvis M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Mar 23, 2022

Appeal No. 2021002934 (E.E.O.C. Mar. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jarvis M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002934 Hearing No. 470-2020-00124X Agency No. 4C-400-0079-19 DECISION On April 14, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 12, 2021 final order concerning his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency’s Post Office in Richmond, Kentucky. On December 3, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African American), disability, age, and reprisal when: 1. On May 25, 2019 his postmaster threatened to fire him. 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. 2021002934 2 2. Complainant was denied a reasonable accommodation. The Agency dismissed claim 1 on the ground that it was untimely. The Agency accepted claim 2 and conducted an investigation into the claim. After its investigation into claim 2, 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 timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 2021002934 3 Request to Reinstate Claim 1 In his formal complaint, Complainant alleged that he was discriminated against when, on May 25, 2019, his postmaster threatened to fire him. His initial contact with an EEO counselor concerning this matter was on September 9, 2019. The Agency determined that Complainant failed to bring the claim to the attention of an EEO counselor within 45-days of the matter alleged to be discriminatory and dismissed the claim as untimely. On September 18, 2020 Complainant filed a motion to reinstate the claim. The AJ subsequently denied Complainant’s motion. On December 7, 2020, Complainant again made an argument to reinstate the claim. The AJ reaffirmed the dismissal of the claim on the ground that Complainant had not raised the issue within the 45-day time limit. On appeal, Complainant argues that the claim should be reinstated under the “continuing violation” doctrine. Here, however, to the extent Complainant is alleging he was subjected to a discriminatory hostile work environment,2 he has not alleged that one or more acts related to Claim 1 occurred within 45 days of his September 9, 2019 initial contact with the EEO counselor. Therefore, we find the dismissal of the alleged threatened termination was proper. Claim 2: Reasonable Accommodation 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 a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) (“Enforcement Guidance”). The AJ determined that although Complainant was diagnosed with anxiety, he failed to meet his burden of proof to establish that he was a “qualified individual with a disability.” In so doing, the AJ noted Complainant was not cleared to work in any capacity due to his medical condition and could not establish that he could perform the essential functions of his job with or without reasonable accommodation. A “qualified individual with a disability” is an individual who satisfies the requisite skill, experience, education and other job-related requirements of the employment position and who with, or without reasonable accommodation can perform the essential functions of such position. 29 C.F.R. 1630.2(m). A review of the record shows that Complainant was off work from May 2019 through his retirement in September 2020 for medical reasons. During that period, Complainant submitted doctor’s notes to his manager every month, placing him off work. The notes describe that Complainant was diagnosed with anxiety disorder, major depressive disorder and high blood pressure. 2 The Supreme Court has held that a complainant alleging a discriminatory hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). 2021002934 4 However, the notes do not describe how his condition affected his ability to perform his duties as a City Letter Carrier. Nor do they describe how Complainant's duties could be modified to adequately enable him to perform his work. Like the AJ, we find that there was insufficient evidence to establish that, during the period at issue, Complainant could perform the essential functions of his position with or without reasonable accommodation. Moreover, we note that on appeal, Complainant argues that the Agency made no effort to engage in the interactive process for over five months. However, a review of the record shows the District Reasonable Accommodation Committee (DRAC) requested that Complainant provide specific documentation of his condition and limitation necessary to process his accommodation request. Complainant did not provide the necessary documentation. Therefore, we find that his failure to provide the necessary documentation caused the failure to receive consideration of a possible accommodation. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final order, because the AJ’s issuance of a decision without a hearing was appropriate and a preponderance of the record evidence 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 https://publicportal.eeoc.gov/Portal/Login.aspx 2021002934 5 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. The court has the sole discretion to grant or deny these types of requests. 2021002934 6 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 March 23, 2022 Date