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

Equal Employment Opportunity Commission

May 25, 2021

Appeal No. 2020000541 (E.E.O.C. May. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lino L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020000541 Hearing No. 430-2016-00512X Agency No. 4K-230-0093-16 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 September 5, 2019 final order concerning an equal employment opportunity (EEO) complaint claiming 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 period at issue, Complainant worked as a Rural Carrier Associate at the Agency’s Stafford Post Office in Stafford, Virginia. On May 26, 2016, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency discriminated against him based on disability (Post Traumatic Stress 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. 2020000541 2 Disorder/PTSD, degenerative disk disease, lumbar spine, sciatica, degenerative joint disease) and in reprisal for prior protected EEO activity2 when: 1. on March 1, 2016, Complainant was informed that he would be terminated because he had too many VA medical appointments; 2. on March 3, 2016, Complainant’s request for reasonable accommodation was denied, and he was sent home; and 3. on May 10, 2016, Complainant was issued a Notice of Termination with an effective date of May 13, 2016. Following the completion of the report of investigation of the accepted claims, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, on November 13, 2018, the Agency issued a motion for summary judgment. After receiving an opposition from Complainant, the AJ issued a decision by summary judgment in favor of the Agency.3 The instant appeal followed. On appeal, Complainant disputes, through counsel, the Agency’s determination that Complainant’s removal was based on his failure to disclose, on his post-offer Medical Review Questionnaire (MRQ), that he had a disability. Complainant asserts that the MRQ did not require Complainant to disclose any medical conditions. Complainant further asserts that because none of the medical conditions he had prevented him from performing his job duties, he truthfully answered “no” to the MRQ questions regarding whether he had a medical condition that prevented him from performing his job duties. Complainant explains that documentation in the record reflects that management acknowledged that he was fully able to perform his job functions. Therefore, Complainant asserts that the Agency’s reasons for his termination were pretext for discrimination. Additionally, Complainant asserts that the AJ improperly denied Complainant’s motion to compel email communications involving Agency personnel and the Office of General Counsel Attorney (OGC Attorney). Complainant claims that the OGC Attorney stepped out of his role as an attorney and into the role of Responsible Management Official (RMO) by making the decision to terminate Complainant and directing management officials to carry it out. 2 Complainant testified that he participated in protected EEO activity when he made a reasonable accommodation request on February 27, 2016, and when he initiated the EEO complaint process for the instant complaint on March 7, 2016. 3 The AJ summarily adopted the Agency’s motion for summary judgment and did not provide detailed analysis of each claim at issue. 2020000541 3 Specifically, Complainant claims that the OGC Attorney, during the pre-complaint process, “dug up evidence, had discussions which involved Agency personnel and even pointedly questioned [Complainant] about his disabilities during an EEO Counseling session and then used [Complainant’s] answers as a basis for decision to terminate.” Because Complainant asserts that the OGC Attorney acted more as an RMO than attorney, Complainant asserts that email communications involving the OGC Attorney and Agency personnel were not privileged communications and could have been produced. ANALYSIS AND FINDINGS Preliminary Matter - OGC Attorney Interference As an initial matter, we address Complainant’s contention of improper interference by the Agency’s OGC Attorney during the EEO pre-complaint process warranting a waiver of the attorney-client privilege and work-product doctrine. Here, the record indicates the OGC Attorney was a member of the First Opportunity Risk Evaluation (FORE) Unit which was responsible for the preliminary resolution of EEO cases. In this role, the OGC Attorney contacted the Agency to determine if a settlement agreement was an option. Additionally, the record indicates that the OGC Attorney was present during an initial scheduling conference for Complainant along with the District Reasonable Accommodation Committee (DRAC) Chairperson, and the Agency’s EEO Alternative Dispute Resolution (ADR) Specialist to determine whether to Complainant wanted to proceed through the DRAC process or through the EEO Redress process. The record further indicates that the OGC Attorney’s remaining involvement with Complainant’s complaint consisted of requesting and submitting the MRQ to his client. Significantly, the OGC Attorney testified in his deposition that he was not involved in the decision to terminate Complainant’s employment. Upon review, we find that the OGC Attorney participated solely in informal resolution talks during the counseling stage which did not constitute inappropriate interference on the part of the Office of General Counsel. Annalee D. v. General Services Administration, EEOC Appeal No. 0120170991 (Oct.10, 2018), req. for recons. granted, EEOC Request No. 2019000778 (Nov. 27, 2019). Complainant solely based his argument for waiver of attorney-client privilege and the work- product doctrine, by alleging that the OGC Attorney improperly interfered with the EEO pre- complaint process. Because we have determined that the OGC Attorney did not improperly interfere, we find that Complainant no longer has a basis to support his request for waiver of attorney-client privilege and the work-product doctrine. Therefore, we find that the AJ properly denied his request for waiver. Merits of the Claims 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). 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. 2020000541 4 242, 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 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. 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. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant testified that in 2013 he was diagnosed with discoid lupus erythematous, PTDS, tinnitus, degenerative disc disease in the lumbar spine, degenerative joint disease in his knees, and bilateral hearing loss. Complainant explained that he informed his first level supervisor (S1) and Postmaster from October 2015 through January 2016 about his medical conditions. 2020000541 5 Although Complainant asserted that he was able to perform the duties of his position without work restrictions, Complainant indicated that these conditions limit him to walking short distances at a time, restrict his hearing, and require that he not be in direct sunlight between 10:00 am - 2:00 pm. We presume, for the purpose of analysis only and without so finding, that Complainant is a qualified individual with a disability. We acknowledge that the AJ summarily adopted the Agency’s motion for summary judgment without providing a separate analysis of each claim. However, our independent review of the record indicates that the AJ correctly determined that the Agency articulated legitimate, non- discriminatory reasons for its actions. The record reflects that Complainant was hired as a Rural Carrier Associate with a 90-day probationary period. The Postmaster indicated that Complainant was specifically hired to be the replacement substitute on Mondays. The Postmaster stated, however, that Complainant had “horrible” attendance.4 The record indicates that Complainant was marked “leave without pay” (LWOP) on seven occasions from January 2016 through February 2016 and four of the seven absences occurred on Mondays. Both Complainant and S1 acknowledged that these absences were due to Complainant attending Veteran Affairs (VA) medical appointments, and consequently, Complainant testified that S1 was accommodating and understanding about his medically related absences. However, both S1 and Complainant testified that the Postmaster was not aware that Complainant’s absences were due to medical appointments he had with the VA. Consequently, on March 1, 2016, the Postmaster informed Complainant that he would terminate Complainant’s employment because of “horrible” attendance at which point Complainant notified him of the reason for his absences. The Postmaster then rescinded his initial decision to terminate Complainant’s employment, and that same day, Complainant requested a standing floor mat as a reasonable accommodation to provide him knee and back support while he worked. The Postmaster testified that he contacted the DRAC to begin processing Complainant’s reasonable accommodation request for a floor mat. After he contacted the DRAC, the Postmaster stated that he was informed that Complainant had lied or failed to indicate on his application that he had a medical condition. The Postmaster indicated that he was instructed by the DRAC not to allow Complainant to return to work until he had completed and turned in his medical documents to the health unit indicating that he was cleared to perform the duties of a Rural Carrier Associate. We note that the DRAC Chairperson denied having any involvement in the decision to send Complainant home.5 4 The record indicates that Complainant was a probationary employee for the first 90 days he worked. Although Complainant began working for the Agency in October 2015, he had not completed 90 days of work as March 1, 2016 because of his absences. 5 Complainant testified that the Occupational Health Nurse Administrator (OHNA) informed him that it was standard procedure for him not to work until he returned with the completed 2020000541 6 However, the DRAC Chairperson acknowledged that Complainant’s name was referred, and Complainant was provided initial DRAC forms on March 18, 2016. The DRAC Chairperson further noted that Complainant had requested a specific standing mat, but Complainant had not provided any medical documentation to support his need for this specific mat. The DRAC Chairperson explained that on March 31, 2016, Complainant completed a DRAC Form 2A (Employee Information) and identified his conditions as “limited flexion of knees and degenerative arthritis of the spine.” Almost one month later on April 15, 2016, the DRAC Chairperson stated that Complainant submitted a DRAC Form 2B (Medical Information) completed by his physician noting that Complainant had “degenerative arthritis of spine, sciatica, and knee pain.” The DRAC Chairperson clarified that the DACR Form 2B stated that Complainant had no work restrictions but would benefit from having a rubber or padded mat to stand on while working.6 However, the DRAC Chairperson explained that during a subsequent meeting,7 Complainant stated that he also had PTSD which required use of a companion dog on his mail route, Lupus which required that he not be outside between the hours of 10 am - 2pm, and he stated that he had six more additional conditions which he would disclose at a later date. The DRAC Chairperson indicated that Complainant mentioned that if he had included these medical conditions on his application, be believed the Agency would not have hired him. But the DRAC Chairperson explained that if Complainant had disclosed these medical conditions, he would have been referred to the DRAC for review. Nevertheless, the DRAC Chairperson stated that no accommodation was granted because the DRAC was notified that Complainant’s employment was terminated before Complainant met with the DRAC. Consequently, the record supports that Complainant was not denied a reasonable accommodation, rather, the DRAC process ended once Complainant was terminated. Regarding the termination itself, the Postmaster testified that Complainant was ultimately terminated for lying on his application for the Rural Carrier Associate position. paperwork to lower his risk of further injury because he indicated the need for a reasonable accommodation. The record also includes a March 2, 2016 email from OHNA to Complainant requesting that he contact his physician to complete the medical forms because (1) there was no medical documentation on file and (2) Complainant indicated on his application that he did not have any current medical conditions and could perform his job duties. 6 The record indicates that Complainant’s position required him to stand and case mail for approximately two to four hours. 7 This meeting was an initial scheduling call following the processing of Complainant’s instant EEO complaint where the DRAC Chairperson, the OGC Attorney, and the EEO ADR specialist were present. 2020000541 7 The record indicates that Complainant certified on his application that all statements made were “true, complete, and correct to the best of [his] knowledge and belief and are in good faith.” The application further warned Complainant that “a false or dishonest answer to any question in this application my be grounds for not employing you or for dismissing you after you begin work . . .” The record reflects that the Rural Carrier Associate position is a physically demanding job and required walking, delivering, and collecting mail along a mail route. The job also required lifting and carrying up to 70 pounds, knee bending, prolonged walking, as well as standing between two and four hours while casing mail. Notably, Complainant was conditionally offered the position on September 28, 2015, pending his completion of an MRQ. The MRQ indicated that “a false or dishonest answer to any question may be ground for a withdrawal of the offer of employment or grounds for termination after appointment.” The record supports that Complainant answered “No” to the following three medical questions: 1. Do you have any physical or mental condition or medical limitations that could interfere with your ability to perform the full duties of the job you have been offered? 2. Are you currently being treated by a medical provider for any health condition or taking any medication that may impair your ability to perform full duties of the job you have been offered? 3. Do you now have or have you in the past 2 years had work restrictions impacted by a treating provider that could affect your ability to perform the full duties of the job you have been offered? In contrast, Complainant testified that in 2013 he had been diagnosed with Lupus, PTDS, tinnitus, degenerative disc disease in the lumbar spine, degenerative joint disease in his knees, and bilateral hearing loss. Consequently, Complainant had these conditions before he applied for the position Rural Carrier Associate position in 2015, and as a result, falsely answered these medical questions. Additionally, the record supports that Complainant had a physician visit on September 23, 2015, one week before receiving the conditional offer, where Complainant reported that “he is unable to work or go to school, due to memory problems.” A copy of the termination notice, dated May 11, 2016,8 indicates that Complainant was a probationary employee who failed to disclose information regarding his medical history on the Application for Employment, PS Form 2591. 8 The record also includes a June 21, 2016, amended termination notice correcting the typo in the initial notice and stated that Complainant was terminated for “fail[ing] to disclose information of your medical history on the 2485-D form on September 25, 2015 online.” 2020000541 8 The notice further indicates that Complainant certified on the employment application that “the statements made in [his] application are true, complete, and correct to the best of [his] knowledge and belief and are in good faith.” Complainant’s termination became effective May 13, 2016. We acknowledge Complainant’s argument on appeal that because he could perform the essential functions of his position, he answered the questions truthfully when he responded “No” to all three medical questions. Complainant further argued that his response was truthful because his physician never issued him any work restrictions. However, the record reflects that Complainant requested a reasonable accommodation on March 1, 2016, for an undisclosed medical condition. Complainant then informed the Agency during an April 2016 initial scheduling call that he had Lupus and six other medical conditions that had an impact upon his ability to carry mail and he purposefully decided not to disclose what those conditions were at that time. Complainant asserted that the Agency should have been aware of his medical condition because he disclosed on his application that he was a disabled veteran. However, the Agency would not have known the extent of Complainant’s condition if Complainant chose not to disclose his conditions. Furthermore, testimony in the record supports that Complainant admitted to deliberately withholding his medical information on his application to secure his employment. As a result, the Agency’s decision to terminate Complainant’s employment during his probationary period for making purposeful misrepresentations about his medical condition does not support that the decision to terminate was made with discriminatory animus. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s disability and in reprisal for prior protected EEO activity. Harassment To establish a claim of discriminatory environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, Complainant must establish that he 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 a protected basis - in this case, his disability and reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 2020000541 9 Complainant’s additional claim of discriminatory harassment as evidenced by the events in claims 1 - 3 are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his disability or reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 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. 2020000541 10 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. 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 25, 2021 Date