[Redacted], Maximo C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Dec 8, 2022

Appeal No. 2021004201 (E.E.O.C. Dec. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maximo C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004201 Hearing No. 471-2019-00158X Agency No. 1C-452-0005-19 DECISION On July 19, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 21, 2021 final order concerning his 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. Complainant worked as a Distribution Operations Supervisor, EAS-17 at the Network Distribution Center in Cincinnati, Ohio. On March 4, 2019, Complainant filed a formal EEO complaint in which he alleged that the Agency discriminated against him on the basis of disability (long-term aftereffects of kidney transplant) when: 1. On October 13, 2019, Complainant was denied his request for a reasonable accommodation when he was returned to his supervisory position on Tour 3 after completing a detail to Tour 2; 2. On an unspecified date, Complainant’s name was placed on the “Deems Desired” list, which required Complainant to submit medical documentation to support his absences; 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. 2021004201 2 3. On November 1, 2018, Complainant received a letter of warning for unsatisfactory performance from the Tour 3 Distribution Operations Manager. At the completion 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 issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order in which it fully implemented the AJ’s decision. This appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the officials named in the complaint were motivated by unlawful considerations of his disability. Denial of Reasonable Accommodation Complainant alleged that management denied his request for a reasonable accommodation. An Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (December 3, 2015). In order to raise a genuine issue of material fact as to whether he was denied a reasonable accommodation, Complainant must present enough evidence to infer that: (1) he is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: 2021004201 3 Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). As to whether Complainant is an individual with a disability, he reported that he was diagnosed with an unspecified medical condition in 2009, that he underwent a kidney transplant in November 2014, and that within the time frame of the complaint, he was able to work a full time schedule (five days per week at eight to nine hours per day) without restrictions. OR 55. 74, 208-11. We will therefore assume that Complainant is a qualified individual with a disability. Complainant was nominally assigned to Tour 3 but was temporarily detailed to Tour 2. IR 93, 116-17, 155, 161. 179. On October 10, 2018, he received a written notification from the Tour 2 Distribution Operations Manager that he would be returned to his regular position on Tour 3. IR 115-16, 207. As a reasonable accommodation, Complainant requested that he be allowed to remain on Tour 2. IR 211. While Complainant is entitled to an effective reasonable accommodation, he is not entitled to the accommodation of his choice. Garth N. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021003838 (Oct. 13, 2022). A certified nurse practitioner from the Kidney Transplant Office within University of Cincinnati’s medical center recommended that Complainant work for no more than 40 hours per week or eight to nine hours per day. IR 208. This note was undated. An advanced practice registered nurse indicated in a note dated October 16, 2018, that Complainant was under her care due to multiple health issues and needed to be on the day shift. IR 209. However, the nurse practitioner did not specify what those conditions were, nor did she provide a diagnosis or prognosis for any of those conditions. In his reasonable accommodation documentation, Complainant stated that he wanted to be returned to Tour 2 because the work environment was “less stressful.” IR 211. The reason given by management for returning Complainant to Tour 3 was that the operation was short-staffed and needed several line supervisors, of which Complainant was one. IR 75, 80, 132. According to the Tour 3 Distribution Operations Manager, Complainant was never asked or compelled to work beyond the time limits recommended by his medical providers. IR 75-76, 162. A member of the District Reasonable Accommodation Committee who worked with Complainant stated that there was no language in any of the recommendations that required Complainant to work Tour 2 for health or medical reasons, and that allowing Complainant to remain on Tour 2 would have resulted in an undue hardship to the Agency. IR 155-56. On the basis of the record before us, we concur with the AJ’s finding that Complainant did not present evidence to raise a genuine issue of material fact as to whether the Agency failed to provide him with a reasonable accommodation. Disparate Treatment In order to warrant a hearing on his disparate treatment claim, 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). 2021004201 4 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 Tour 3 Distribution Operations Manager articulated legitimate and nondiscriminatory reasons for placing Complainant on the deems desired list2 and issuing him a letter of warning. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to incident (2), the Tour 3 Distribution Operations Manager affirmed that she placed Complainant on the “Deems Desired” list because he had been absent on weekends, when he was scheduled to work. IR 82-84, 87. The Plant Manager asserted that Complainant had “horrible attendance” at times. IR 168. Regarding incident (3), the Tour 3 Distribution Operations Manager averred that she issued Complainant a letter of warning for unsatisfactory performance when he failed to properly staff an operation. IR 87-88, 93, 214-15. To move forward with a hearing, Complainant must also raise a genuine issue of material fact as to whether the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Questions of pretext can be raised by showing such 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 recon. den. EEOC Request No. 0520080211 (May 30, 2008). 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). When asked why he believed that his medical condition was a factor in his being placed on the Deems Desired list, Complainant replied “10/13/19.” IR 62. It appears that Complainant is citing the Agency’s failure to reasonably accommodate him by allowing him to remain on Tour 2 as his answer to the investigator’s question. When asked why he believed that his medical condition was the reason he was issued a letter of warning, Complainant replied in a similar fashion, “if all who have been advised beforehand it should not be a factor.” IR 66. 2 According to Section 513.361 of the Agency’s Employee and Labor Relations Manual, for a period of absences of three days or less, medical documentation or other acceptable evidence of incapacity for work may be required if the supervisor deems documentation desirable for the protection of the Agency’s interests. https://about.usps.com/manuals/elm/html/elmc5_003.htm. 2021004201 5 Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which are sufficient to raise a genuine issue of material fact as to the existence of an unlawful motivation on the part of the Tour 3 Distribution Operations Manager in connection with either incident. Likewise, Complainant has not presented any documentary or testimonial evidence that would cause us to question the Tour 3 Distribution Operations Manager’s truthfulness as a witness. Nor has Complainant presented any evidence from which one could infer the existence of at least one of the indicators of pretext listed above. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Finally, to the extent that Complainant is alleging that he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Ultimately, we agree with the AJ that Complainant has failed to establish the existence of an evidentiary dispute sufficient to give rise to a genuine issue of material fact. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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). 2021004201 6 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. 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. 2021004201 7 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 December 8, 2022 Date