[Redacted], Luis H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Mar 9, 2022

Appeal No. 2021001124 (E.E.O.C. Mar. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luis H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001124 Hearing No. 410-2020-00120X Agency No. 4G-320-0083-19 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 15, 2020, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Customer Service, EAS-17, at the Agency’s Post Office in Warner Robins, Georgia. On May 28, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (Borderline Personality Disorder with Psychotic Features) when: 1. Since November 2018, his request for reasonable accommodation was denied; 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. 2021001124 2 2. On or about January 17, 2019, he was issued a letter of warning (LOW) in lieu of a 7-day suspension.2 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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. The AJ found that, taking the facts as presented in the report of investigation and viewing the evidence in the light most favorable to Complaint, he failed to create a genuine issue of material fact to establish discrimination based on disability. Regarding Claim 1, the AJ concluded that Complainant could not establish that the Agency failed to provide him with a reasonable accommodation. The AJ determined that Complainant requested a reasonable accommodation on November 26, 2018, asking that the Agency restructure his position so that he did not have subordinate employees or reassign him to a position without subordinate employees. On December 13, 2018, the Agency sent Complainant a letter requesting that he submit two enclosed forms, namely, a Reasonable Accommodation Request form and a Medical Information and Restriction Assessment form, which was to be completed by Complainant’s medical provider. Complainant never submitted either form. On February 20, 2019, the Agency sent Complainant another letter closing Complainant’s reasonable accommodation request because he did not submit the required documentation and failed to participate in the reasonable accommodation interactive process. The letter also encouraged Complainant to contact the Reasonable Accommodation Committee Chairperson if he needed a reasonable accommodation in the future. Before the AJ, Complainant argued that he did not receive the letters sent by the Agency. However, the record contains tracking information that the Agency’s first letter was delivered at Complainant’s address on December 17, 2018, and that the second letter was delivered on February 26, 2019. Furthermore, the letter carrier who delivered Complainant’s mail, and knew Complainant’s address and that he was an Agency employee, averred that she delivered both pieces of mail to Complainant on the dates reflected in the tracking information. 2 Complainant’s complaint originally listed a third claim: “On unspecified date(s), you believe your Family Medical Leave Act, (FMLA), coverage, was denied.” The Agency dismissed that claim, pursuant to 29 C.F.R. § 1614.107(a)(1), “for failure to state a claim due to lodging a collateral attack on the proceedings of another forum” because the Department of Labor has jurisdiction over FMLA issues. Complainant does not challenge the dismissal of this claim on appeal, and we therefore do not address it further. 2021001124 3 The AJ concluded, “Complainant cannot show that the Agency failed to accommodate his disability due to Complainant’s failure in submitting the necessary medical documentation for the Agency to process his request,” and therefore Complainant could not establish that he was discriminated against with regard to Claim 1. Regarding Claim 2, assuming for the sake of argument that Complainant could establish a prima facie case of discrimination, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for issuing Complainant the LOW. Specifically, the LOW charged Complainant with “Failure to Follow Instructions/Failure to Properly Perform the Duties of [His] Position” when, as the AJ found, he “failed to follow the instructions to verify and ensure that all mail was delivered [on] the day at issue and failed to report about two incidents of undelivered mail by carriers that were under his supervision.” Due to Complainant’s actions, “mail for approximately 152 stops were not delivered on two routes.” The LOW indicated that Complainant did not request authorization to delay the mail and that, despite his knowledge that some mail was not delivered, he issued an “all clear report” indicating that all mail had been delivered on the day at issue. The AJ concluded that the record failed to show Complainant’s disability was a factor in the Agency’s decision to issue the LOW and that “Complainant failed to provide any additional evidence to show the Agency’s reasons were pretextual or masked illegal discrimination.” ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when she or he 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 factfinder could find in favor of the nonmoving 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 implementing 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 AJ’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 failed to provide Complainant with a reasonable accommodation or 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 his favor. 2021001124 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s 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. 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. 2021001124 5 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 March 9, 2022 Date