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

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2019005750 (E.E.O.C. May. 24, 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. Appeal No. 2019005750 Hearing No. 480-2016-00822X Agency No. 4F-926-0221-14 DECISION On August 1, 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 July 3, 2019, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not subjected to discriminatory and retaliatory harassment. BACKGROUND At the time of events giving rise to this complaint, Complainant was a former full-time Letter Carrier Technician at the Agency’s Tustin Post Office in Tustin, California. On April 13, 2015, 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. 2019005750 2 Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), physical disability (lumbosacral spine degenerative disc disease, spine disc bulge, right radiculopathy, right labrum hip tear, urinary and bowel systems, heart attack), and retaliation for prior protected activity under Section 501 of the Rehabilitation Act of 1973 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 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 record indicated that initially, on June 5, 2015, the Agency dismissed the instant complaint due to untimely EEO Counselor contact. Following Complainant's timely appeal, the Commission reversed the Agency's decision in Major D. v. U.S. Postal Serv., EEOC Appeal No. 0120152351 (Dec. 9, 2015), and remanded the complaint for further processing. Thereafter, an investigation was conducted. Record evidence reflected the following information regarding Complainant’s medical condition and his denial of reasonable accommodation allegations: On June 17, 2013, Complainant sustained an injury to his lower back. On June 17, 2013, Complainant sought medical treatment from Complainant’s Physician. Complainant’s Physician diagnosed Complainant with lumbar radiculopathy, lumbar intervertebral disc syndrome with myelopathy, and lumbar disc degeneration. Complainant’s Physician also advised that Complainant could return to modified work on July 1, 2013. In an Office of Workers’ Compensation Programs (OWCP) Form CA-17, Duty Status Report, dated June 17, 2013, Complainant’s Physician indicated in part that Complainant could not perform his regular work assignment, but could perform intermittent duties such as lifting 10 pounds, sitting as required, standing for 5 hours, walking for 4 hours, climbing for 1 hour, no kneeling or stooping, bending for 1 hour, and pulling and pushing for 0 to ½ hour. Complainant stated, and record evidence indicated, that because of his injuries, Complainant could not perform the normal duties of a letter carrier in that he had weight restrictions of not more than 10 pounds, and time restrictions on other work duties. Complainant stated that, as time passed, his condition got progressively worse which resulted in further restrictions on his ability to perform his assigned duties. The evidence indicated that the functional purpose of the Letter Carrier Technician position is to deliver mail on foot or by vehicle for no less than five letter routes during the absence of the regularly assigned carrier. Postmaster stated that the regular duties of a letter carrier are to case, sort, load, and deliver mail on a daily basis. 2019005750 3 On November 8, 2013, Complainant accepted a modified limited duty city carrier assignment, working 8:00 am to 10:00 am, and casing mail for two hours per day. The modified assignment noted that Complainant’s physical restrictions were lifting one pound for two hours; sitting two minutes per episode for four hours, standing two minutes per episode for one hour, and no bending/stooping or pulling/pushing. Subsequently, Complainant’s Physician updated Complainant's medical restrictions on the OWCP Form CA-17, Duty Status Report, dated December 10, 2013, and indicated further modifications to Complainant's work restrictions, as follows: lifting/carrying one pound, sitting four hours, standing 1 hour, walking for personal needs only, and no climbing, kneeling, bending/stooping, twisting, or pulling/pushing. By letter dated December 26, 2013, OWCP notified the Postal Service of its determination that Complainant should be offered a full-time, modified duty job offer. The OWCP concluded that the weight of the medical evidence rested with the second medical opinion provided by a Department of Labor (DOL) Physician. Specifically, in the second opinion report dated September 27, 2013, DOL Physician determined that Complainant had not reached maximum medical improvement and stated that Complainant should continue home exercises, to stretch, to use the TENS [transcutaneous electrical nerve stimulation] unit, and to take a CT myelogram of Complainant's spine to clear up a discrepancy between the Magnetic Resonance Imaging (MRI) findings and the electromyography/nerve conduction (EMG/NCV) studies. The record does not reflect that DOL Physician performed any examination on Complainant, an indication that DOL Physician relied on information provided by Complainant’s Physician and Complainant in making the determination. With consideration of Complainant's input, DOL Physician concluded, based on DOL Physician’s review, that Complainant could continue working in a modified capacity of continuous lifting up to 25 pounds and intermittent lifting up to 70 pounds; walking and standing but not in excess of 6 hours per day; repetitious bending and stooping but not in excess of 4 hours per day; and limiting his work day to 8 hours. Thereafter, on December 30, 2013, Complainant was offered another modified limited duty city carrier assignment, working 8:00 a.m. to 4 p.m., casing mail for 2 hours, walking park/loop routes for 4 hours, and answering the telephone for 2 hours. The physical requirements for this modified assignment were lifting 25-70 pounds for 8 hours, and walking/standing for 8 hours. On January 6, 2014, Complainant accepted this offer and indicated that he was accepting the offered position under protest because his medical condition had worsened. The form was completed by Postmaster on January 6, 2014. It was this modified assignment offer that, the record indicated, formed the basis of Complainant's second claim of discriminatory harassment. On March 20, 2014, Complainant was again offered a modified limited duty letter carrier assignment, working 7:30 a.m. to 4:00 p.m., casing mail for 2 hours and delivering mail for 6 hours. The physical requirements of this modified assignment were lifting intermittently 25-70 pounds for 6 hours; walking, standing, driving for 6 hours; bending, stooping, and sitting for 4 hours; and fine manipulation, simple grasping for 8 hours. On March 21, 2014, Complainant accepted this assignment and again indicated that his acceptance was made under protest because, according to Complainant, his medical condition was getting worse. 2019005750 4 Postmaster completed this form on March 21, 2014. It was this modified limited duty assignment that, the record indicated, formed the basis of Complainant's third claim of discriminatory harassment. Complainant asserted that he medically retired because his job could not be accommodated. Complainant’s last day in a pay status was August 15, 2014, and, as the record evidence indicated, Complainant took a disability retirement on October 8, 2015. Claim 1 Complainant alleged that Postmaster yelled at him, and made disparaging comments on too many occasions to recall. He asserted that two supervisors (S1 and S2), and some of his coworkers can testify to the incidents. Complainant specified six of the alleged incidents which, he asserted, created a hostile work environment for him, stating that he felt demeaned when Postmaster yelled at him in front of the entire office while Complainant was working as a 2048 [Acting Supervisor]; Postmaster made fun of the way Complainant was walking while wearing a foot brace; Postmaster told Complainant to "suck it up" regarding his pain because Complainant was a Marine; Postmaster made the statement to "break it up, there are too many black people in this area" when Complainant was talking to a friend; Postmaster told Complainant to clock out and go home even though he was assigned to help another light duty letter carrier; and Postmaster instructed Complainant to clock back in after he had ended his work day according to his medical restrictions. Complainant added that Postmaster made a sarcastic remark questioning whether Complainant traveled to work by airplane. Complainant stated that, because of the frequency of Postmaster’s discriminatory, demeaning, and hostile treatment towards him, Complainant was unable to keep track of the dates but asserted that the alleged incidents occurred between October 2013 and January 2014. Complainant provided a list of coworkers who, he stated, were witnesses to Postmaster’s treatment towards him. Complainant stated that the harassment did not stop even after Complainant sought assistance from his union representative about being harassed by Postmaster and that it was his union representative who notified Postmaster about not forcing Complainant to work outside of Complainant’s medical restrictions and about Postmaster’s hostile conduct towards Complainant. Complainant asserted that Postmaster’s conduct and comments were based on his protected classes, stating that Postmaster did not treat female employees and non-disabled employees in the same fashion. Postmaster stated that Complainant never told her that he was being subjected to a hostile work environment, denying Complainant's allegations. Postmaster asserted that she had no recollection of yelling at Complainant or making offensive comments. Regarding the "too many Blacks" comment, Postmaster stated that she is Black, and while she indicated that she did not recall the incident, Postmaster stated that if she had made such a statement, it would have been made in jest. 2019005750 5 Regarding the "suck it up" comment, Postmaster asserted that she did not make the comment, she did not use such terminology, and it would not be something that she would say. Regarding comments about the way Complainant walked, Postmaster asserted that she recalled Complainant wore a brace on his knee at various times and she may have acknowledged the brace, but she denied making any offensive comment about it. As for sending Complainant home, Postmaster stated that she did not recall the alleged incident, asserting that all employees under her supervision who have work restrictions are given tasks that are within their medical restrictions. Postmaster also denied knowledge of Complainant's claim of being told to clock back into work, stating that she does not assign duties that are outside an employee’s medical restrictions. Postmaster asserted that, since she has no recollection and/or outright denied Complainant’s allegations, Complainant's sex, protected EEO activity, and medical restrictions were not factors in her actions. Complainant’s coworker (C1), a Letter Carrier at the Tustin Post Office whom Complainant identified as a witness to his allegations of hostile treatment by Postmaster, asserted in a sworn statement that he had no knowledge of and did not hear Postmaster making a statement about Complainant getting to work by airplane. C1 also stated that Postmaster was rude, obnoxious, and highly suspicious of her employees. C1 stated that Postmaster brought a layer of unnecessary stress to the workplace and treated management and carriers the same. S1, a witness Complainant had named as having heard Postmaster make the comment about "too many Black people," stated in a sworn statement that, during the relevant time frame of Complainants claim, he was working elsewhere and did not recall the alleged incident. Complainant identified another coworker (C2) who he asserted was a witness to Postmaster’s statement about Complainant getting to work by airplane. C2 asserted in a sworn statement dated June 30, 2016, that she did not hear Postmaster make the alleged statement. C2 added that, on an unspecified date, Complainant told her that Postmaster was making Complainant deliver the entire route although it appeared to C2 that Complainant's knee and back were hurting or bothering him as he limped out of the restroom and was hunched over. The record reflected that Complainant also submitted a document entitled Declaration of S2, a former Supervisor, which indicated that it was a statement of S2’s first-hand knowledge about Postmaster’s treatment towards Complainant. The record indicated that the statement appeared to have been signed by Complainant; and as the record described, the document seemed to be self-serving evidence. The record also reflected that C3 and C4, two other named witnesses, were asked to provide affidavits, but neither responded to the investigator's request. Claims 2 and 3 Complainant stated that he requested work accommodations on January 7, 2014, and March 21, 2014, respectively. 2019005750 6 Complainant alleged that Postmaster told him that she did not accept his accommodation requests as being valid and that Postmaster ignored his doctor's information. Complainant indicated that Postmaster instead offered him modified work assignments, asserting that he did not agree with the offered assignments because they exceeded his medical restrictions provided by his treating physician on OWCP Forms CA-17. Complainant also stated that the modified assignments were not modifications because they were his regular job duties. Complainant indicated that he made a request to Postmaster on January 7, 2014, to appear before the District Reasonable Accommodation Committee (DRAC) and that he neither received a response from the DRAC nor appeared before the committee. Complainant stated that he did not request to appear before the DRAC after the March 21, 2014, accommodation request because, on March 22, 2014, he was placed off work and placed on Temporary Total Disability (TTD). Complainant alleged that Postmaster engaged in discrimination by forcing Complainant to work outside of his medical restrictions provided by his treating physician on several OWCP Form CA-17; forcing Complainant to clock back into work after he had completed the required hours for his limitations in November 2013; forcing Complainant to clock out and go home when there was no carrier work for him to do; controverting Complainant’s OWCP claim for compensation from his March 22, 2014, injury; preventing Complainant from receiving Continuation of Pay (COP); yelling at Complainant on numerous occasions; making disparaging remarks; and berating Complainant in front of others. Complainant contended that Postmaster’s actions towards him occurred between October 2013 and January 2014, but he could not recall specific dates. Complainant asserted that his sex was a factor in this claim because he was treated differently from female employees when he was injured. Complainant stated his belief that his medical condition was a factor and that his protected activity was a factor because he had asked for an accommodation on several occasions. Complainant provided the names of seven comparators, two female and five male, including coworkers one through seven (C1, C2, C3, C4, C5, C6, and C7) who, Complainant asserted, were treated more favorably because they requested and were granted reasonable accommodations. Postmaster stated that the offers of modified assignment that were referred to by Complainant were generated by instructions from the DOL, stating that she did not recall if Complainant requested a reasonable accommodation. Postmaster stated that she was not aware that Complainant requested a modified assignment based on his Physician’s recommendations. Postmaster noted that, before January 2014, Complainant was on Limited Duty based on an on- the-job injury filed with DOL. Postmaster asserted that, on January 6, 2014, she presented Complainant with an Offer of Modified Assignment during a teleconference and that, during a modified assignment meeting on March 21, 2014, Complainant questioned whether he should complete a new CA-1, Traumatic Injury, Claim for COP, if he were to have an accident on his route. 2019005750 7 Postmaster stated that Complainant requested that the Modified Assignments be based on Complainant’s Physician recommendation. However, Postmaster stated, like the first offer, the second offer was a result of the notification from DOL which indicated that the weight of medical evidence rested with DOL Physician and that DOL directed the Postal Service to offer Complainant a full-time modified job for the second offer. Postmaster added that the offer was for eight hours, including the duties of casing and carrying a route. Postmaster stated that no other management official was involved in the decision. Postmaster noted that Complainant told her that he believed the offer did not match Complainant’s Physician’s recommendation. Postmaster stated her belief that Complainant signed the job offers he received under protest, but Postmaster did not believe that Complainant actually performed any of the duties indicated on the Modified Duty Assignment dated January 6, 2014. Postmaster also asserted that she did not recall receiving Complainant’s Nomination Form for reasonable accommodation consideration. Postmaster asserted that neither Complainant's sex nor his protected EEO activity was a factor in the decisions to issue the Offers of Modified Duty Assignment at issue. Postmaster asserted that Complainant's medical condition was a factor in that the decisions to issue the Offers of Modified Duty Assignment were because of Complainant’s medical restrictions. Postmaster stated that C1 is a male, who did not have a medical condition, and was not granted a reasonable accommodation. Postmaster affirmed that C2, C3, C4, C5, and C6 (including the two female comparators identified by Complainant) have medical conditions but were not granted reasonable accommodations. Postmaster stated that except for C7, a female who also performed the same duties as Complainant, and C1, all of the comparators named by Complainant had some sort of temporary work restrictions at one time or another and were assigned to tasks within their work restrictions. Postmaster asserted that she took no action related to Complainant's belief that he was being subjected to a hostile work environment because she was not aware of the hostile work environment allegation. Postmaster stated that she was not aware if Complainant brought his concerns about a hostile work environment to the attention of anyone else, asserting that Complainant did not tell her that he believed that Postmaster disparaged him at work, and noting that the agency anti-harassment/hostile work environment policy was posted in her facility. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Record evidence reflected that the Agency had filed pre-hearing motions in 2018, including a request to the AJ that all deadlines be extended to allow for proper review of discovery documents. The record also reflected that Complainant had untimely responded to the Agency’s requests for documents, and had thereby waived any objection to the Agency’s motion to compel answers to discovery requests. 2019005750 8 The record indicated that Complainant failed to properly provide responses or requested essential documents, including medical information pertinent to claims of disability discrimination. On April 22, 2019, the AJ issued a Show Cause Order (SCO) , requiring Complainant to explain why sanctions should not be imposed for his failure to follow the AJ’s Orders which required him to cooperate during discovery, timely respond to the Agency’s dispositive motion, and timely file his pre-hearing submissions. Complainant was ordered to respond to the SCO by May 2, 2019. The SCO also indicated that, if Complainant failed to respond to the order or failed to provide legally sufficient reasons to justify his failure to follow the AJ’s orders or otherwise prosecute his case, the imposition of sanctions, including dismissal of his complaint or request for hearing may result. Complainant failed to respond as ordered. On May 2, 2019, the AJ dismissed Complainant's request for a hearing and remanded the complaint to the Agency for the issuance of a FAD. The AJ held that a dismissal of Complainant's hearing request was an appropriate sanction when Complainant failed to timely file his pre-hearing submissions and failed to show good cause for not doing so. 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. CONTENTIONS ON APPEAL In his Appeal Brief, among other things, Complainant reiterates his allegations, contesting the Agency’s decision. Complainant also contests the AJ’s dismissal of his complaint, asserting that because the court did not set a hearing date in either a September 19, 2017, order or a February 28, 2018, order but only set a date regarding dispositive motions, counsel for Complainant interpreted "pre-hearing submissions" to be for the prospective oral argument for the dispositive motions. Complainant asserts that the mistake, error, and/or excusable neglect of counsel in misinterpreting the court's February 2, 2018, order was not intentional; that the act was not done in bad faith or out of disrespect for the court; and that the extreme sanction of dismissing Complainant’s case is disproportionate to the error, and such a drastic sanction is inequitable to Complainant. Complainant requests that, due to the prospective merit of his case, the AJ’s dismissal be reversed and that his case be reinstated. In its Appeal Brief, the Agency reiterates its FAD determination, asserting that Complainant and his attorney failed to comply with the AJ’s orders to make pre-hearing submissions, or even to answer discovery sufficiently at nearly every turn, making dismissal without a hearing reasonable and necessary. The Agency asks that the hearing dismissal and the FAD finding no discrimination or retaliation be affirmed. STANDARD OF REVIEW 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 2019005750 9 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”). ANALYSIS AND FINDINGS Affirmance of AJ Hearing Dismissal As a preliminary matter, we find that the AJ’s dismissal of Complainant’s hearing request was appropriate. We note that the regulations at 29 C.F.R. 1614.109(f)(3) state that an administrative judge may dismiss a complaint without a hearing as a sanction for a complainant’s failure to comply with that judge’s orders. We also note Complainant’s appeal argument regarding the missed filing which, Complainant asserted, was a mistake and excusable error made for good cause. However, record evidence supports the AJ’s position that Complainant, who was represented by counsel, failed to comply with the AJ’s orders to make pre-hearing submissions, or even to answer discovery sufficiently, making dismissal without a hearing reasonable and necessary. The AJ also issued an SCO to which Complainant failed to timely respond. Therefore, we find that Complainant has not shown that the AJ’s dismissal of his complaint was improper. Failure to Accommodate (Claims 2 and 3) In a reasonable accommodation case, Complainant may establish disability discrimination by showing that: (1) he is an individual with a disability as defined in 29 C.F.R. § 1630.2(g); (2) he is a "qualified" individual with a disability as defined in 29 C.F.R. § 1630.2(m); and (3) the agency took an adverse action against him, more specifically, that the Agency failed to accommodate his disability. For the purposes of analysis, we assume, without so finding, that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). Complainant must demonstrate that he is a qualified person with a disability in order to establish that he was denied reasonable accommodation for his disability because entitlement to reasonable accommodation absent a showing of undue hardship by the agency is predicated upon complainant's proof, by a preponderance of the evidence, that he is a qualified individual with a disability within the meaning of the Rehabilitation Act. See Smith v. Dep’t of the Navy, EEOC Appeal No. 01A13473 (Oct 8, 2002). Under the Commission’s regulations at 29 C.F.R. § 1630.2(m), a qualified individual with a disability is an individual who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who, with or without reasonable accommodation, can perform the essential functions of such position. 2019005750 10 Based on the facts in the record, we find that Complainant has failed to demonstrate that he is a qualified person because he was unable to perform the essential duties of a letter carrier. We note that, on November 8, 2013, Complainant accepted a modified limited duty city carrier assignment. However, 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, stooping, twisting, pulling, and pushing. At that point, Complainant was given one assignment - casing mail - which he performed for two hours. We find that the Agency provided Complainant with “make work” as he was not performing the duties of a city 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 carrier. As such, Complainant has not demonstrated that he is a qualified individual with a disability with respect to his city carrier technician position. Further, there is no evidence in the record to show that Complainant could have been provided with a reasonable accommodation that would have allowed him to perform the essential functions of this position. Rather, we find that the modified assignments that Complainant received were the result of the Agency's effort to make work for Complainant. 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. See Saul v. U.S. Postal Serv., EEOC Appeal No. 01970693 (May 10, 2001). Therefore, we find that Complainant has not shown that the Agency’s failure to provide him with a reasonable accommodation constituted a violation of the Rehabilitation Act. Disparate Treatment based on Sex and in Retaliation We next address Complainant’s sex discrimination allegations under the three-prong burden- shifting framework for analyzing claims of discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. He must demonstrate that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden is again on Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, it is Complainant’s obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 2019005750 11 Assuming, arguendo, that Complainant established a prima facie case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We also find no persuasive evidence of pretext. Specifically, Postmaster stated that she issued job modification assignments to Complainant based on DOL determination instructions. Complainant disagreed with Postmaster’s statement, asserting that Postmaster treated him less favorably than female employees. Complainant also identified comparators who, he asserted, requested, and received, reasonable accommodations that Postmaster allegedly denied to Complainant. However, Complainant did not refute Postmaster’s assertions that some of the identified employees had some sort of temporary work restrictions at one time or another and were, like Complainant, assigned to tasks within their work restrictions. Complainant presented no direct evidence that discrimination occurred, and he did not identify similarly situated employees who received more favorable treatment under his same circumstances. Therefore, he does not prevail. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995) (asserting that, in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail). Harassment Based on Disability and in Retaliation for Requesting Reasonable Accommodation Complainant alleged that Postmaster created a hostile work environment for him, stating that he felt demeaned when Postmaster yelled at him in front of the entire office while Complainant was Acting Supervisor; that Postmaster made fun of the way Complainant was walking while wearing a foot brace; that Postmaster told Complainant to "suck it up" regarding his pain because Complainant was a Marine; and that Postmaster made the statement to "break it up, there are too many black people in this area" when Complainant was talking to a friend. To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Here, Complainant failed to demonstrate that Postmaster engaged in any unwelcome severe or pervasive verbal or physical conduct that was based on his protected classes that interfered with or altered the terms and conditions of his employment. Therefore, we find that Complainant failed to meet elements 3 and 4. 2019005750 12 Postmaster denied Complainant’s allegations and indicated that she could not confirm or deny that the alleged incidents occurred. Complainant’s own identified witnesses also denied knowledge of the alleged incidents of harassment. S1, one of the identified witnesses, stated that he was working at another location during the period at issue. S2’s testimony was unsubstantiated due to the questionable signed statement that Complainant presented as being from S2. Therefore, Complainant was the only person who asserted that the alleged events occurred; and the record is devoid of any corroborating evidence. Moreover, even if Complainant’s allegations are true, we find that while Complainant may have had disagreements with Postmaster, there is no evidence that any severe or pervasive verbal or physical management conduct that would rise to the level of actionable harassment occurred. Rather, Complainant mostly describes routine work assignments, instructions, and admonishments that do not rise to the level of discriminatory harassment. See, e.g., Zada C. v. U.S. Postal Serv., EEOC Appeal No. 0120161460 (May 29, 2018) (positing that routine work assignments are not discriminatory harassment and that "employees may experience unprofessional, inappropriate, and disrespectful treatment"). Furthermore, C1 had stated that Postmaster was rude, obnoxious, and highly suspicious of her employees; that Postmaster brought a layer of unnecessary stress to the workplace; and that Postmaster treated management and carriers the same. These statements indicate that Complainant was not subjected to actions based on his protected bases. Therefore, Complainant’s harassment allegations fail. In the same vein, we find that Complainant’s retaliatory harassment claim must fail. More importantly, to prevail in a retaliatory harassment claim, a complainant must show that a reasonable person would have found the challenged action materially adverse, i.e., an action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination in the future. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). There is no evidence of such action in the instant complaint. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 2019005750 13 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. 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. 2019005750 14 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: ______________________________ arlton . Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 24, 2021 Date