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

Equal Employment Opportunity Commission

Apr 29, 2021

Appeal No. 2020000787 (E.E.O.C. Apr. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mari R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000787 Agency No. 4G-390-0057-19 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 September 27, 2019, final decision concerning her 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. BACKGROUND During the period at issue, Complainant worked as a Part-time Flexible (PTF) Sales Services Distribution Associate at the Agency’s Coldwater Post Office in Coldwater, Mississippi. On May 24, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on disability. On June 4, 2019, the Agency issued a Partial Acceptance letter. Therein, the Agency determined that Complainant’s complaint was comprised of the following claims: 1. On or about January 5, 2019, Complainant was not made a regular clerk. 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. 2020000787 2 2. On or about January 8, 2019, Complainant was denied a change of schedule as a reasonable accommodation; 3. On January 9, 2019, Complainant was forced to resign; and 4. On unspecified dates, Complainant believes that management denied the union’s efforts to make her a regular clerk. The Agency accepted claim (1) - (3) for investigation. However, the Agency dismissed claim (4) for failure to state a claim reasoning that this matter was a collateral attack on another forum and involves an issue regarding the collective bargaining agreement. On appeal, Complainant does not expressly contest the dismissal of claim (4) on appeal. Thus, we decline to address it further herein. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.. The Agency assumed without finding that Complainant is an individual with a disability. Regarding claim (1), Complainant not being promoted to a Regular Clerk position, the Agency found that it articulated a legitimate, nondiscriminatory reason for its action. Specifically, the Agency stated that the Coldwater Post Office did not have a full-time clerk position. The Agency found that Complainant failed to establish that the its articulated reason for the action was pretext for discrimination. Regarding claim (2), the denial of a reasonable accommodation, the Agency stated that “Complainant was given a set non-split with 2 days off. Although this is not the specific accommodation recommended by her physician, it is consistent with accommodation Complainant herself asserted that she needed and is consistent with the needs of the service.” Final Agency Decision at 16. The instant appeal followed. On appeal, Complainant asserts that the Agency did not try to accommodate her and asserts that the Agency did not initiate the interactive process. Complainant is seeking reinstatement and backpay. 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 2020000787 3 “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”). Claim (1)-Regular Clerk Position A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie case 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 articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency articulated a legitimate, nondiscriminatory reason for not promoting Complainant to a Regular Clerk position. The record contains an affidavit from the Postmaster at the facility at issue. Therein, the Postmaster asserted that she does not have a full-time clerk position at that facility.2 Report of Investigation (ROI) at 83. The Postmaster stated that there has not been a regular clerk position at the facility since 2012, when she started working there. ROI at 84. The Postmaster further stated that she told Complainant that she would need to apply for a vacant Regular Clerk position. ROI at 85. 2 The record also contains an affidavit from the Manager of Post Office Operations (M1). Therein, M1 corroborates the Postmaster’s statement that Complainant’s facility did not have a full-time clerk position. ROI at 99. 2020000787 4 Complainant failed to establish, by a preponderance of the evidence, that the Agency’s articulated reason was pretext for discrimination. Complainant asserts that the union told her based on the size of the facility, she was supposed to be a regular Clerk. ROI at 63. We find that this assertion is insufficient to establish pretext. The Postmaster, in her affidavit, stated that the budget and clerk hours come from Agency Headquarters. ROI at 85. We further note that Complainant requested a final decision in the instant matter. As a result of Complainant’s decision not to elect a hearing before an EEOC Administrative Judge (AJ), we do not have the benefit of an AJ’s credibility determinations or an AJ overseeing the further development of the record. Claim (2)-Denial of a Reasonable Accommodation Regarding claim (2), being denied a reasonable accommodation, Complainant failed to establish that she was denied a reasonable accommodation. Complainant was out of work for several months between September-December 2018, while she received treatment at a medical facility. ROI at 108-109. The record contains documentation from Complainant’s medical provider, a Licensed Professional Counselor (LPC). ROI at 108-111. Therein, the LPC stated that Major Depressive Disorder and Anxiety were stressors directly impacted by excessive split shifts and insufficient time off to recoup. ROI at 109. LPC recommended that to maintain stability, that Complainant be assigned to a 40-hour week schedule which includes eight consecutive hours, five days a week, as well as two consecutive days off a week. ROI at 110-111. LPC specifically recommended that Complainant not be assigned split shifts. ROI at 110. Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a ““qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Guidance). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) (“the word ‘accommodation’. . . conveys the need for effectiveness”). That is, a reasonable accommodation should provide the individual with a disability with “an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability.” 29 C.F.R. Part 6130 app. § 1630.9. 2020000787 5 If more than one accommodation will enable an individual to perform the essential functions of his or her position, “the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations and may choose the less expensive accommodation or the accommodation that is easier for it to provide.” Id.; see also Guidance at Question 9. “The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability.” 29 C.F.R. Part 6130 app. § 1630.9. We note that, under the Rehabilitation Act, it is anticipated that, to the extent necessary, the employer will engage in the interactive process with the individual requesting accommodation to clarify the individual's needs and identify the appropriate reasonable accommodation. 29 C.F.R. § 1630.2(o)(3). In the instant matter, we assume, without finding, that Complainant is an individual with a disability. However, we find that Complainant failed to establish that the Agency denied her a reasonable accommodation. Medical documentation in the record reflects that Complainant’s medical provider requested that Complainant be placed in an eight hour a day schedule with two consecutive days off. ROI 110-111. The medical provider also set forth that Complainant should not be assigned a split schedule. Id. The record reflects that the Agency was in the process of engaging in the interactive process with Complainant. Upon Complainant’s return to work on January 5, 2019, Complainant was assigned a non-split schedule by management as requested by her medical provider. ROI at 88, 113. To the extent, Complainant alleges that this schedule conflicted with her ability to drop her children off at school in the morning, the Rehabilitation Act provides for accommodations needed to perform the essential functions of one’s position due to disabilities, rather than accommodations for childcare issues. In addition, to the extent that Complainant alleges that management did not let her work her prior schedule, the record reflects that Complainant’s prior schedule was a split shift, which was against the recommendations of her medical provider. To the extent, Complainant alleges that the Agency should have provided her a schedule working forty hours a week or a regular position as an accommodation, this would have resulted in a promotion for Complainant who was a part-time flexible employee and usually scheduled to work less than forty hours a week.3 In addition, reassignment is the reasonable accommodation of last resort and should be considered only when 1) there are no effective accommodations that would enable an employee to perform the essential functions of her current position or 2) accommodating the employee in the current position would cause undue hardship. Guidance. In addition, reassignment does not include giving an employee a promotion. Id. 3 The Postmaster stated the Complainant, a part-time flexible Clerk, worked 27-37 hours a week depending on the budget for the week. ROI at 88. 2020000787 6 Finally, while the new schedule does not appear to account for two consecutive days off, the Postmaster asserted that she had scheduled a meeting on January 9, 2019 at 6:30 a.m. regarding Complainant’s schedule (a few days after her return to work).4 ROI at 86, 88. Thus, we find that the Agency was engaging in the interactive process in an effort to accommodate Complainant with respect to her schedule. However, the record reflects that Complainant resigned earlier in the day and did not attend this meeting. Specifically, the Postmaster asserts that on January 9, 2019 around 6:05 a.m., Complainant left a note on her desk that she was resigning. ROI at 89. Based on the foregoing, we find that Complainant has not established that she was denied a reasonable accommodation. Claim (3)-Constructive Discharge/Rescinding Resignation The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). As stated above, the Commission finds that Complainant has not shown that the Agency's actions were motivated by discriminatory animus. We further note, as did the Agency, that Complainant inquired about returning to her position a few days after her resignation, which belies the argument that the working conditions were intolerable as alleged. To the extent Complainant is alleging that the Agency’s failure to reinstate her, following her resignation, is discriminatory, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Postmaster, in her affidavit, asserts that Complainant returned to the facility on January 11, 2019 and requested that her resignation be rescinded. ROI at 90. The Postmaster states that she told Complainant she would need to check with Labor for guidance. Id. ROI at 90-91. The Postmaster asserted that Labor advised her that if Complainant had come back to work the same day she resigned, that it would have reinstated her. However, Complainant did not come back until a few days later. M1, in her affidavit, corroborates the Postmaster’s statement. 4 Complainant appears to acknowledge that the Postmaster was arranging a meeting regarding her schedule. In her affidavit, Complainant states when she was at work on January 8, 2019, she asked the Postmaster how can she get her children to school with the current 5:00-10:00 a.m. schedule, the Postmaster responded we can talk more tomorrow. ROI at 71. However, Complainant states that she left a resignation note on the Postmaster’s desk the next day. Id. 2020000787 7 Specifically, M1 states that the Postmaster called her and told her that she checked with Labor and they told her it was too late for Complainant to rescind her resignation. ROI at 103. Complainant did not establish by a preponderance of the evidence, that the Agency’s articulated reason was pretext for discrimination. While Complainant asserts throughout her affidavit and on appeal that the Postmaster is lying, we note that Complainant requested a final decision rather than a hearing before an EEOC Administrative Judge (AJ). As a result of Complainant’s decision not to elect a hearing before an EEOC Administrative Judge (AJ), we do not have the benefit of an AJ’s credibility determinations or an AJ overseeing the further development of the record. CONCLUSION Accordingly, we AFFIRM the Agency’s final 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 2020000787 8 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. 2020000787 9 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 April 29, 2021 Date