[Redacted], Matt B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 13, 2021Appeal No. 2020003572 (E.E.O.C. Oct. 13, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matt B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020003572 Hearing No. 430-2019-00288X Agency No. 4K-270-0057-18 DECISION On May 28, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 1, 2020 final order 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. At the time of events giving rise to this complaint, Complainant worked as a Customer Service Supervisor, EAS-17, at the Durham Post Office in Durham, North Carolina. On July 20, 2018, Complainant filed a formal EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (Latino), national origin (Ecuadorian), sex (male), and disability (post-traumatic stress disorder (PTSD)) when: 1. Since December 24, 2017, Complainant’s request for reasonable accommodation had been denied; and 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020003572 2 2. On unspecified dates, Complainant had been involuntarily reassigned approximately 11-12 times to different work locations. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, the AJ assigned to the matter granted the Agency’s motion and issued a summary judgment decision finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. Denial of Reasonable Accommodation We begin with incident (1), in which Complainant alleged that the Operations Manager (OM) and the Postmaster (PM) denied his requests for reasonable accommodation. Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dep’t. of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). We will assume arguendo that Complainant is a qualified individual with a disability. The first indication in the record that Complainant had requested a reasonable accommodation was an email from Complainant to OM, PM, and other individuals dated April 2, 2018, in which he requested to be returned to a morning tour to which he had previously been assigned. He stated that for the previous four months, he had been moved around to different facilities on different tours, and that the multiple scheduling shifts were creating issues with his PTSD condition as well as financial hardships. 2020003572 3 Supplemental Affidavit of Labor Relations Manager, Exhibit A. In May 2018, Complainant met with OM and OM granted Complainant’s request. Complainant acknowledged that this accommodation was granted. Complainant’s second accommodation request was to allow him to perform route inspections by walking along the route rather than riding in the back of the mail delivery vehicle. The District Reasonable Accommodation Committee (DRAC) met with Complainant telephonically on July 11, 2018 and subsequently granted and implemented his request. IR 151-60. On the basis of the evidentiary record before us, we agree with the AJ that Complainant failed to raise a genuine issue of material fact as to whether the Agency granted his request for a reasonable accommodation.2 Disparate Treatment To warrant a hearing on his disparate treatment claim with respect to incident (2), Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since the AJ found that OM and PM had articulated a legitimate and nondiscriminatory reasons for detailing Complainant to the various facilities comprising the Durham Post Office. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). PM averred that Complainant had never been reassigned. He stated that the Durham Post Office included seven stations that were collectively part of the Durham Post Office, and that as the postmaster, PM had the right to move EAS supervisors within the Durham operation in order to meet any needs that arise or otherwise maintain postal operations. IR 81-82. To move forward with a hearing, Complainant must also raise a genuine issue of material fact as to whether the Agency's explanations for its actions are a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be raised as an issue by pointing to weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). 2 We note that on appeal, Complainant argues that “the case as I stated in the past is not just about the reasonable accommodation…[p]lease review my initial complaint so this can move forward the right way, and stop saying this is a case about accommodations only.” There is no evidence in the record indicating that Complainant challenged the Agency’s initial framing of his complaint when he was provided the opportunity to do so nor did he raise any concerns while the matter was pending before the AJ. Accordingly, we find no basis to disturb the AJ’s decision and the final order in that regard. 2020003572 4 Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Beyond his own assertions, Complainant has presented neither affidavits, declarations, interrogatories, or unsworn statements from witnesses other than himself nor documents which contradict or undercut the explanations provided by PM and OM, which cause us to question the veracity of these individuals as witnesses, or which otherwise tend to establish the existence of at least one of the indicators of pretext referenced above. We therefore find, as did the AJ, that Complainant failed to raise a genuine issue of material fact as to whether any of the Agency’s articulated reasons for its actions vis-à-vis Complainant were pretextual. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. 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. 2020003572 5 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. 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. 2020003572 6 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 13, 2021 Date Copy with citationCopy as parenthetical citation