[Redacted], Lynette B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Jun 28, 2021

Appeal No. 2020000092 (E.E.O.C. Jun. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynette B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020000092 Hearing No. 570-2017-01129X Agency No. 6X-000-0017-17 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 July 18, 2019 final decision 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., 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 During the period at issue, Complainant worked as a Disability Compliance Specialist, EAS-23, at the Agency’s Disability Programs Office in Gaithersburg, Maryland. 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. 2020000092 2 On February 16, 2017, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency discriminated against her based on race (African American), sex (female), disability (asthma), age (YOB: 1964), and in reprisal for prior protected EEO activity2 when: 1. on December 7, 2016, Complainant became aware that she and not been given an End-of-Year (EOY) Performance review, and subsequently, she was not given a pay raise due to her Pay for Performance (PFP) Rating; and 2. on January 23, 2017, Complainant became aware that she was not selected for the position of Disability Programs Compliance Specialist, EAS-24, after she was not recommended to the Selecting Official by the Review Committee. After its investigation into the accepted claims, 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 requested a hearing, but she subsequently withdrew her request. As a result, the AJ remanded the complaint to the Agency for a final decision. On July 18, 2019 the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant, through counsel, argues that the Agency discriminated against her when she was not given an EOY Performance review and when she was not selected for the position at issue. Complainant further argues that the Agency delayed processing her reasonable accommodation request when she returned to work following and an extended leave of absence.3 ANALYSIS AND FINDINGS 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 2 Complainant filed two prior complaints, Agency Nos. 6X-000-0034-16 and 6X-000-0046-16. 3 Complainant alleges that she was denied a reasonable accommodation in another complaint, Agency No. 6X-000-0046-17, which is identified as EEOC Appeal No. 2020000089, which is pending before the Commission. Therefore, we shall not address Complainant’s denial of a reasonable accommodation in the instant appeal. 2020000092 3 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 she has allergies and asthma and her condition requires that she use an EpiPen and rescue inhaler. Complainant explained that she was diagnosed with allergies in November 2015, and she was diagnosed with asthma in March 2016. Complainant further explained that she is restricted from working in an environment that has “allergy triggers” and causes her asthma. As a result of these conditions, Complainant stated that she limits herself from walking upstairs, stress, anxiety, smoke, fumes, sudden changes in temperature, ground elevations, among others. We presume, for the purposes of analysis only, and without so finding, that Complainant is a qualified individual with a disability. EOY Performance Evaluation (Claim 1) The record reflects that Complainant was on extended leave from work from March 2016 through November 2016 during FY 2016 while her reasonable accommodation request with the Agency was pending. The Performance Evaluation System (PES) indicates that on October 26, 2016, Complainant’s supervisor (S1) decided not to provide Complainant an EOY Performance discussion or rating. S1 noted in the PES that Complainant would not receive a rating due to “[e]xtended leave for Entire Period of 10/01/2016 - 10/31/2016 - [Complainant] was and continues to be on extended SL (sick leave).” Because Complainant did not receive a rating, she did not receive a salary increase. S1 explained that Complainant was on Family & Medical Leave Act (FMLA) leave related to a foot injury. Specifically, S1 indicated that on December 2, 2015, Complainant submitted a note from her podiatrist indicating that that she had foot surgery and that she could return to work with restrictions, which included no driving more than 20-30 minutes. Keeping in line with Complainant’s work restrictions, S1 stated that she approved Complainant to work at the Waldorf Carrier Annex to reduce her commute to work. S1 indicated that Complainant then filed a workers’ compensation claim and requested a reasonable accommodation for the 2020000092 4 allergy/asthma condition in March 2016. Consequently, S1 stated that Complainant had been absent from work on FMLA leave in October through December 2015; she took FMLA leave for a few days in February 2016, she was absent from March 2016 through November 7, 2016; and she left work again on December 13, 2016, without returning. S1 acknowledged that she did not provide Complainant an EOY performance rating because Complainant “was still out on leave for an undetermined period.” S1 further acknowledged that she could not leave Complainant’s evaluation pending, so she made note of Complainant’s long-term absence so that she could close the FY 2016 activities by the October 28, 2016 deadline. However, S1 indicated that it was too late to reopen the PES and update the system to include a rating after Complainant returned to work on November 7, 2016, and therefore, Complainant did not receive a FY 2016 rating. However, the preponderance of the evidence in the record reflects that these proffered reasons for not issuing Complainant an EOY performance rating are pretext for disability discrimination. The record includes a copy of the Agency’s Pay-for-Performance Program Evaluation Rules. These rules specify that managers must provide performance ratings for employees. In pertinent part, the rules state: Employees who are on are on OWCP LWOP or FMLA LWOP for the entire fiscal year (i.e. did not work at all), must receive a rating that is equal to the average of the overall performance ratings of the employees in their unit. . . . Employees on OWCP LWOP or FMLA LWOP for any part of the fiscal year, must be evaluated based on upon his/her performance while at work. The rating must not be reduced because of the time spent in any of the above listed LWOP statuses. In accordance with this Agency’s policy, S1 was required to issue Complainant a FY 2016 rating regardless of the length of time Complainant was on sick leave, FLMA leave, or leave related to a workers’ compensation claim. Here, we note that S1 specifically decided not to rate Complainant because Complainant was out of the office on sick leave during FY 2016. The record indicates that Complainant had asthma and allergies, was on sick leave for this condition pending a reasonable accommodation, and she had filed a workers’ compensation claim. Based on the Agency’s rule, S1 could not have used Complainant’s sick leave status as justification for not issuing Complainant a FY 2016 EOY Performance Rating. Therefore, we find that the evidence is sufficient to establish that Complainant was discriminated against based on disability, and/or retaliated against for pursuing reasonable accommodation for her disabilities, when management failed to issue Complainant a FY 2016 EOY Performance Rating. We remand this claim to the Agency for further processing as indicated in our Order below. 2020000092 5 Non-Selection (Claim 2) S1 testified that Complainant applied for the Disability Programs Compliance Specialist position which S1 served as the selecting official. S1 explained that a Review Committee evaluated the application packages to rate the applicants, from 0 to 3, based on their demonstration of the Knowledge, Skills, and Abilities (KSAs) requirements stated on the application. S1 further explained that the Review Committee Chair (RCC) informed her that none of the applicants were recommended because they all were rated “0” (Not demonstrated at minimum level) for at least one or more of the KSAs. Consequently, the applicants were deemed “not minimally qualified” and were not recommended to S1 for interviews. The RCC corroborated, as well as the other Review Committee members, S1’s testimony that the Review Committee came to a consensus that each applicant had a “0” in a KSA. The RCC noted that once an applicant had a “0” in a KSA, the matrix automatically identified the applicant as “not qualified.” In Complainant’s case, the RCC noted that Complainant was rated “0” under KSA three. As a result, none of the applicants were recommended to S1 for interviews. 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 race, sex, disability, age and in reprisal for prior protected EEO activity. CONCLUSION Accordingly, we AFFIRM the Agency’s finding of no discrimination for Claim 2. However, we REVERSE the Agency’s finding of no discrimination for Claim 1. We REMAND Claim 1 to the Agency in accordance with the ORDER below. ORDER The Agency is ORDERED to take the following actions: 1. Within thirty (30) calendar days form the date this decision is issued, the Agency shall retroactively grant Complainant the salary increase she would have received for fiscal year 2016 through her separation from the Agency on November 25, 2017, and pay Complainant back pay, benefits, and interest for the difference between what she was paid during this period and the rate at which she would have been paid had she received a fiscal year 2016 EYO performance rating. 2. Within sixty (60) calendar days from the date this decision is issued, the Agency shall conduct a separate investigation into Complainant’s entitlement to compensatory damages regarding the Agency’s failure issue her a FY 2016 EOY performance rating (Claim 1) and issue a decision on compensatory damages thirty (30) days after the investigation is completed. 2020000092 6 3. Provide EEO training to the supervisor (“S1”) identified as responsible for the violation, with special emphasis on disability discrimination, as well as the anti- retaliation provisions of the Rehabilitation Act. POSTING ORDER (G0617) The Agency is ordered to post at its Disability Programs Office facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the 2020000092 7 underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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, 2020000092 8 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2020000092 9 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 June 28, 2021 Date