[Redacted], Major D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Oct 12, 2021

Appeal No. 2019005750 (E.E.O.C. Oct. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Major D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Request No. 2021003918 Appeal No. 2019005750 Hearing No. 480-2016-00822X Agency No. 4F-926-0221-14 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019005750 (May 24, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the period at issue, Complainant was a Carrier Technician at the Agency’s Post Office in Tustin, California.2 On April 13, 2015, Complainant filed a formal EEO complaint alleging that 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. 2 The record reflects that effective October 19, 2015, Complainant was placed on disability retirement. Report of Investigation (ROI) at 379. 2021003918 2 the Agency discriminated against him on the bases of sex (male), physical disability (numerous conditions), and in reprisal (for requesting a reasonable accommodation) when: 1. During 2013 through March 22, 2014, the Postmaster subjected Complainant to a hostile work environment when she yelled at him and disparaged him at work; 2. On January 14, 2014, Complainant was denied reasonable accommodation when Complainant was forced to accept a Modified Job Offer with duties beyond his medical restrictions; and 3. On March 21, 2014, Complainant was denied a reasonable accommodation when he was forced to accept another Modified Job Offer beyond his medical restrictions or the Postmaster said she would send Complainant home. The Agency initially dismissed the formal complaint on procedural grounds. Complainant appealed to this Commission and the Agency’s dismissal was reversed and the complaint remanded for further processing. EEOC Appeal No. 0120152351 (March 22, 2016). After an 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. After issuing a Show Cause Order, the AJ dismissed Complainant’s hearing request on May 2, 2019 for failure to timely file his pre-hearing submissions and remanded the matter to the Agency. The Agency issued a final decision concluding that Complainant failed to prove the discrimination as alleged. Complainant filed an appeal. In EEOC Appeal No. 2019005750 (May 24, 2021), we affirmed the Agency’s final decision finding no discrimination. Complainant filed the instant request for reconsideration. In his request, Complainant, through his attorney, raises various arguments in an effort for this matter to be returned for a hearing. Complainant reiterates that the AJ’s sanction of cancelling the hearing request was too harsh. Complainant asserts that initial appellate decision erred by referring, at times, to Complainant’s position as a “Letter Carrier,” rather than as a “Carrier Technician.” Complainant asserts that this reference resulted in OFO analyzing the wrong essential functions for his position and improperly finding him to be not qualified pursuant to the Rehabilitation Act. Complainant also asserts that he established a prima facie case of retaliation and that the Agency subjected him to reprisal when it offered him a job offer which was not actually modified and exceeded his medical restrictions. 2021003918 3 The prior decision properly found that the AJ’s dismissal of Complainant’s hearing request was appropriate. Specifically, the prior decision properly found that record evidence supports the AJ’s position that Complainant, who was represented by counsel, failed to submit pre-hearing submissions in a timely manner. EEOC Appeal No. 2019005750 at 9. Regarding Complainant’s denial of reasonable accommodation claims, we find that the prior decision properly found that Complainant did not demonstrate that he was a qualified individual with a disability. To the extent that the prior decision, at times, referred to Complainant’s position as a letter carrier (rather than a Carrier Technician), we find this to be harmless error. The prior decision properly set forth “due to his worsening medical condition, Complainant’s restrictions became more limiting as he had weight, work and time restrictions to a one-pound lifting restriction, four hours of sitting, one hour of standing, walking for personal need only, zero climbing, kneeling, bending, stopping twisting, pulling and pushing…We find that the Agency provided Complainant with ‘make work’ as he was not performing the duties of a [carrier technician] which involved delivering mail on foot or by vehicle for no less than five letter routes during the absence of the regularly assigned carrier3…The Rehabilitation Act does not require the Agency to consider accommodating Complainant’s restrictions by creating a ‘make work’ assignment because such an assignment is not a vacant, funded position.” EEOC Appeal No. 2019005750 at 10. To the extent, moreover, that Complainant asserts that he was subjected to unlawful retaliation when he was provided with a “modified” job offer, in which the duties were not truly modified, we find that the prior decision properly found that even assuming arguendo that Complainant established a prima facie case of sex discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions (i.e. Postmaster issued job modification assignments based on Department of Labor determinations) which Complainant failed to establish was pretext for discrimination and/or retaliation. Finally, to the extent that Complainant raises other arguments in his request, we remind complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (Aug. 5, 2015), Chapter 9. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. 3 The record contains a position description for the position of Carrier Technician, Report of Investigation (ROI) at 381. The position description sets forth, in pertinent part, that the functional purpose of the Carrier Technician is a “principal carrier for a designated group of not less than five letter routes, delivers mail on foot or by vehicles on the routes during the absence of the regularly assigned carriers…” The duties of this position also encompass serving any routes in the absence of the regular carrier and performing complete and customary duties of a carrier.” Id. 2021003918 4 The decision in EEOC Appeal No. 2019005750 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 October 12, 2021 Date