[Redacted], Lorne J., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jun 28, 2021

Appeal No. 2020000359 (E.E.O.C. Jun. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lorne J.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020000359 Hearing No. 560-2018-00294X Agency No. 4E-640-0069-17 DECISION On September 5, 2019, 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 August 19, 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., 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 AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full-time Carrier Technician at the Agency’s Olathe East Station facility in Olathe, Kansas. On November 1, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (June 2012 left upper extremity on-the-job injury) and age (58) when, from June 3, 2017 and continuing, the Agency failed to provide 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. 2020000359 2 reasonable accommodation and assigned Complainant work duties outside of his medical restrictions. The Agency accepted Complainant’s EEO complaint for investigation. During the investigation, Complainant stated, on June 3, 2017, he requested reasonable accommodation of a six-hour workday. Complainant stated that management initially denied his request and told him that he was expected to work at full duty. Complainant stated that management later approved his request for August 21 through December 17, 2017, but the initial rejection was a hardship. (Complainant stated that he was on leave in late May and early June 2017, and then worked full duty for two and a half days until he had muscle tension while working on June 15, 2017). Complainant provided a May 30, 2017 Department of Labor Duty Status Report, signed by his doctor, stating “employee able to perform regular work described . . . 6 hours per day.” Complainant stated that he alleges the basis of age because he noted his age on his request and requiring him to work outside his medical restrictions impacts his longevity in his position/retirement. The Customer Services Supervisor (S1) did not provide an investigative statement,2 but during the pre-complaint stage, S1 stated that he did not receive a reasonable accommodation request from Complainant. He added that Complainant was on annual leave between May 28, 2017 and June 12, 2017. S1 stated that Complainant submitted his reduced hours request while on leave and S1 learned that Complainant’s Office of Workers’ Compensation Programs (OWCP) claim was closed, so the initial expectation was for him to return to full duty. S1 stated, on July 13 and 14, 2017, Complainant worked eight hours per day and, on July 15, 2017, worked six hours plus utilized two hours of sick leave. S1 stated that Complainant was then off work until August 21, 2017, when he returned, and management accommodated his restrictions. The record contains a June 6, 2017 note from the Olathe Station Manager, stating that the Agency did not have work within Complainant’s restrictions and would contact him when it did. Further, the record contains Hours Analysis Reports for pay period 11 of 2017 through pay period 26 of 2017 for Complainant. The reports show: pay period 12 - Complainant worked 8 hours and utilized 64 hours of annual leave; pay period 13 - Complainant worked two 8-hour work days and 1 almost 6-hour work day and then utilized annual leave, sick leave, and leave without pay (LWOP); pay period 14 - Complainant utilized 72 hours of sick leave; pay period 15 - Complainant utilized 72 hours of sick leave and 8 hours LWOP; pay periods 16 and 17 - Complainant used 80 hours sick leave each pay period; and pay period 18 - on August 21, 2017, Complainant began working 6 hours per work day and using annual leave, sick leave, and LWOP otherwise. The reports show that Complainant returned to 8-hour workdays the week of December 6, 2017. At the conclusion of 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 EEOC Administrative Judge (AJ). Complainant requested a hearing, but the assigned AJ later dismissed 2 The Investigator stated that S1 was on extended leave and then retired on January 31, 2018, which is about the time investigative questions were sent to him. 2020000359 3 the hearing request and remanded for a final agency decision. 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 instant appeal from Complainant followed. 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”). Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002); see also, Abeijon v. Dep’t of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). Assuming, without finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency failed to provide reasonable accommodation. Complainant stated that he has a 2012 on-the-job injury to his left upper extremity and, on June 3, 2017, requested a six-hour work-day related to his injury. Complainant stated that management initially denied his request and told him that he was expected to work at full duty, but later approved his request for August 21 through December 17, 2017. The record shows management allowed Complainant the use of leave between June 15 and August 21, 2017, which is when he was give 6-hour workdays. Complainant provided a May 30, 2017 Duty Status Report, signed by his doctor, stating “employee able to perform regular work described . . . 6 hours per day.” Complainant’s 2020000359 4 supervisor, S1, stated that he did not receive a reasonable accommodation request from Complainant and found that Complainant had a closed OWCP claim. S1 explained that Complainant was scheduled off work between May 28, 2017 and June 12, 2017, worked full 8- hour days on July 13 and 14, 2017, worked a 6-hour day on July 15, 2017, and then was off work until August 21, 2017. (The Agency stated that it did not have work within Complainant’s restrictions and would contact Complainant when it did.) S1 stated, when Complainant returned on August 21, management accommodated his restrictions. Hours Analysis Reports for pay periods 11 through 26 of 2017 support the Agency’s contentions regarding Complainant’s work hours and use of annual leave, sick leave, and LWOP alternatively. Based on the circumstances present in the instant case, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Further, to the extent Complainant alleged discrimination based on age, we find that Complainant failed to show the Agency’s actions were based on discriminatory motives. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 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 2020000359 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. 2020000359 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 June 28, 2021 Date