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

Equal Employment Opportunity Commission

Mar 20, 2023

Appeal No. 2021003825 (E.E.O.C. Mar. 20, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristle L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003825 Hearing No. 430-2020-00296X Agency No. 4K-290-0060-19 DECISION On June 23, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 25, 2021 final action 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant period, Complainant worked as a Mail Processing Clerk at the Agency’s Columbia Processing and Distribution Center (P&DC) in Columbia, South Carolina. 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. 2021003825 2 On July 6, 2019, Complainant filed a formal EEO complaint alleging discriminatory harassment on the bases of disability (on-the-job injury), genetic information (unspecified) and in retaliation for engaging in prior protected activity when: 1. On an unspecified date, Complainant’s workers’ compensation claim was denied by the Department of Labor.2 2. From May 2018 through December 2018, she was denied a reasonable accommodation for her on-the-job injury. 3. Since October 2018, she has been charged AWOL for her absences. 4. On November 26, 2018, she was issued a 7-day Suspension.3 5. On February 7, 2019, she was offered a light duty assignment that included only two hours of work per day and was outside of her regular hours. 6. On or about February 29, 2019, she was issued a 14-day suspension. 7. On April 7, 2019, she was denied accommodation and sent home. 8. On April 26, 2019, she was given a New Light Duty Modified Job Offer, which she feels violated her restrictions. 9. After refusing the Light Duty Job Offer on April 26, 2019, she was sent home. After its investigation into the complaint, the Agency provided Complainant with 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. On September 15, 2020, the Agency filed a Motion for a Decision Without a Hearing. Complainant responded to the motion. On May 12, 2021, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final action adopting the AJ’s finding of no discrimination or unlawful retaliation. The instant appeal followed. 2 The AJ found that Claim 1 was properly dismissed by the Agency for failure to state a claim as an improper collateral attack on an adjudication by the Department of Labor. We discern no reason to disturb the AJ’s decision on this matter. This claim will no longer be addressed in this decision. 3 The AJ also found that Claims 4 and 6 related to suspensions which were resolved in the grievance process. Again, we discern no reason to disturb the AJ’s disposition of these claims. These claims will no longer be addressed in this decision. 2021003825 3 ANALYSIS AND FINDINGS Given the disposition of claims 1, 4 and 6 on procedural grounds, as addressed in footnotes 2 and 3, our review of the merits will be confined solely to claims 2-3, 5, and 7-9, as determined by the AJ. 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 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). To successfully oppose a decision by summary judgment, a complainant must identify, with specifically, 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 factor of Complainant, a reasonable fact-finder could not find for Complainant. Reasonable Accommodation: Claims 2 - 3 Under the Commission’s regulations, an 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. The Commission will assume for purposes of analysis only, without so deciding, that Complainant is an individual with a disability. Complainant identified her disability as contusion of her toe caused by an on-the-job injury, with pain, swelling and nerve injury, which had been diagnosed on September 30, 2016. Complainant claimed that she was improperly denied a reasonable accommodation from May to December 2018, when she was not permitted to work and had been marked as Absent Without Leave (AWOL) during her absence. The record shows that, on or about May 22, 2018, Complainant submitted documentation to Agency management, in support of her workers’ compensation claim, where her pain management specialist indicated: “Concern for sedation secondary to medication in morning. 2021003825 4 Limit no operating heavy equipment for 1st two hours of day.” Complainant, however, advised the Manager of Health and Resource Management (“HRM Manager”) that she took medication “throughout the day.” Complainant acknowledged that this was the reason the HRM Manager prohibited Complainant from working - management’s concern that her impairment from using pain medication throughout her shift prohibited her from safely operating heavy equipment or otherwise being on the workroom floor surrounded by machinery and moving vehicles. Complainant provided no evidence that she could have safely worked during this period. On December 28, 2018, Complainant submitted medical documentation that she was no longer using the pain medication at issue and she was allowed to return to work. The AJ correctly concluded that the above-referenced facts defeated Complainant’s claim of Agency failure to grant a reasonable accommodation (allow her to work) during the relevant period. Regarding Complainant’s absence being documented as AWOL, the AJ concluded that there was no evidence reflecting the Agency action was taken for a discriminatory reason, but rather because of Complainant’s pending workers’ compensation claim. The record indicates that Complainant was provided workers’ compensation wage loss compensation during this period, until the benefits were terminated by the Department of Labor as of December 31, 2018. Contesting of Light Duty Assignment: Claim 5 At the point Complainant’s workers’ compensation benefits were terminated at the end of 2018, the Agency notified Complainant that she could submit a request for light duty. On January 30, 2019, Complainant submitted a request for light duty, which was approved on February 5, 2019. Complainant was offered a temporary light duty position scanning for two hours (3:00 - 5:00 am) on the dock at the P&DC, with Wednesdays and Thursdays off. Complainant accepted this job offer and returned to work. Complainant later contested the light duty assignment asserting the Agency failed to appropriately accommodate her medical restrictions by assigning her two hours of work per day, and beyond her normal 8:00 a.m. to 4:30 p.m. schedule. The AJ properly determined, however, that medical documentations which Complainant submitted in January 2019 reflected medical restriction of no more than 2 hours per day of walking and/or standing, and that these restrictions were being honored by her light duty assignment. The AJ concluded that this evidence confirmed that the Agency was meeting its obligation to provide her with an effective accommodation. Ongoing Attempts to Accommodate Complainant: Claims 7 - 9 Complainant’s light duty assignment expired on March 22, 2019, and Complainant was thereafter required to submit updated medical documentation in support of extended light duty, or documentation reflecting no further restrictions, which would result in a return to full duty. Complainant did neither. Nevertheless, she was offered a new light duty assignment in April 2019, which she claimed violated her “night hours/medication” regiment. 2021003825 5 The AJ found that it not unreasonable for the Agency to provide Complainant with a night-shift assignment, as just months previously, she provided “evidence that she was no longer encumbered by any medication/sedation issues.” Further, the Agency had no reason to believe Complainant’s inability to stand for more than two hours had changed at the time it made the light duty offer. Finally, the AJ found that the Agency offered Complainant several accommodations in 2019, and invited Complainant on three separate occasions (March 2019, November 2019, and January 2020) to participate in the reasonable accommodation interactive process. Complainant acknowledged that she was ultimately accommodated in January 2020 with a light duty assignment. Hostile Work Environment Claim To the extent that Complainant also alleged that these same matters created a discriminatory hostile work environment, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected bases - in this case, her disability and prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982) Harris v. Forklift System, Inc., 510 U.S. 17, 21 (1993) See also, Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 March 8, 1994). The crux of Complainant’s hostile work environment claim concerns the Agency’s responses to her various reasonable accommodation/light duty requests. However, as already detailed earlier in this decision, Complainant has failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). In his decision, the AJ correctly determined that Complainant has not shown sufficient evidence to show that the Agency subjected her to a hostile work environment based on disability and prior protected activity. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. 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 2021003825 6 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). 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. 2021003825 7 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 March 20, 2023 Date