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

Equal Employment Opportunity Commission

Apr 12, 2022

Appeal No. 2021001291 (E.E.O.C. Apr. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maynard G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001291 Agency No. 4G-700-0079-20 DECISION On December 15, 2020, 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 November 13, 2020 final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Customer Services, EAS-17, at the West Slidell Station Post Office in Slidell, Louisiana. On May 2, 2020 (and later amended), Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (Post Traumatic Stress Disorder (PTSD)) and reprisal (prior protected EEO activity)2 when: (1) in June 2019, November 2019, and January 2020, his manager (M1) attempted to discipline him for various issues; (2) on January 3, 2020, M1 entered his leave as absence without leave (AWOL); (3) on January 2, 2020, M1 placed him on the Deems Desirable 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The basis of reprisal applies solely to Claim 6. 2021001291 2 list (DDL); (4) since January 18, 2020, Complainant has not been returned to his Form 50 work location at West Slidell; (5) on April 4, 2020, Complainant’s request to detail to a smaller office was denied; and (6) on or about June 5, 2020, and continuing Complainant has been denied a reasonable accommodation when he was not returned to his Form 50 position after management initially agreed to the accommodation. 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 EEOC Administrative Judge. In accordance with Complainant’s request, 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. FACTUAL BACKGROUND Complainant testified that he experiences complications from several conditions including anxiety, depression, and Social Mood Disorder connected with PTSD memory loss. He said his physician (P1) first diagnosed him with this medical condition approximately in June 2018 and P1 expected him to have this medical condition permanently. Complainant advised M1 of his medical condition in 2018 and the Postmaster in April 2020 when he provided medical documentation. Claims 1 - 3 Complainant asserted that M1 has been harassing him since July 2019, with attempts at issuing unsupported discipline. On July 31, 2019, M1 issued Complainant a Letter of Warning (LOW) stating that on Wednesday, July 10, 2019, Complainant failed to follow instructions when he did not oversee the red placard process during the dispatch operation. The letter reports an investigatory interview (II) was held with Complainant on Wednesday, July 17, 2019, and when asked why the red placard process was not completed as assigned, Complainant responded, “I guess it’s my fault, give me a letter of warning then.” The LOW was signed by M1 and Complainant on July 31, 2019. Complainant testified by mid-November 2019, M1 had learned that a former co-worker of his (S1) would be coming back to Slidell as a supervisor. According to Complainant, this is when M1’s complaints about him increased. Complainant also noted that M1 started to complain more about PM as well. Complainant testified that he believed that M1 was trying to drive him from the office to open a space for S1 to work with him again. In November or December 2019, M1 scheduled an II with Complainant pertaining to an anonymous complaint about Complainant’s language on the workroom floor. PM joined M1 for Complainant’s II. In the meeting, PM told M1 he could not use anonymous information for discipline. Complainant agreed to a temporary swap of work locations with S1 to avoid Complainant being disciplined and to leave what he considered a hostile work environment. Complainant moved to Slidell Main and S1 moved to West Slidell. 2021001291 3 In late December 2019, Complainant’s daughter was hospitalized with a collapsed lung. On January 3, 2020, Complainant updated M1 on his daughter’s status and notified M1 that he would not be at work the next day. Complainant asserted that M1 asked him what kind of leave he wanted, and Complainant responded that annual leave would be fine. Complainant further stated that M1 said okay. However, about 25 minutes later, Complainant received a text from M1 saying that Complainant would have to “call in” to the employee hotline for the next day’s absence. Complainant also learned that M1 placed him on the DDL which required him to provide a doctor’s note for all unscheduled leave. M1 testified that he entered Complainant for .60 hours AWOL on January 3, 2020 because he called the automated line at 10:06 a.m., which was after his scheduled start time of 9:30 a.m. M1 also stated that Complainant had been requesting unscheduled leave each day prior to this day and had been texting or calling the Postmaster (PM) to let him know he would not be at work. M1 affirmed that Complainant did not notify him directly. M1 further explained that Agency policy required Complainant to use the Enterprise Resource Management System (eRMS) automated phone line for all unscheduled leave requests. M1 further testified that he placed Complainant on the DDL because he exhibited a pattern of requesting nonscheduled leave immediately following any type of criticism or discipline. M1 asserted that Complainant had not provided any documentation for any of his previous absences even though it was required. Specifically, M1 noted that on August 1-3, 2019, Complainant requested unscheduled leave just after receiving a letter of warning for failure to follow instructions. On December 17-18, 2019, Complainant requested unscheduled leave immediately following receipt of an email about his poor performance the week of December 10-13, 2019. M1 further stated that on December 30- 31, 2019, Complainant requested unscheduled leave following another email that M1 sent to him about his failure to perform his duties the week of December 24-27, 2019. M1 asserted that Complainant claimed to have medical reasons for his absences but never provided documentation to support any of these absences. PM testified that shortly after his arrival in Slidell, M1 would inform him of events that required corrective actions, but he never found sufficient evidence to support issuing discipline. Claim 4 Complainant asserted that PM discriminated against him when he was not returned to West Slidell on January 18, 2020.3 The Acting Manager of Post Office Operations at the time (AM) testified that he advised PM to leave Complainant in his position at Slidell Main due to Complainant and M1’s contentious relationship. In addition, the Manager of Post Office Operations (MPOO) testified that he was the management official responsible for not returning Complainant to West Slidell at this time because according to MPOO, Complainant told PM that somebody would get hurt if he returned to West Slidell. While Complainant denied making that statement, MPOO asserted that PM told him about that statement during the EEO REDRESS. 3 Complainant does not assert that he requested a reasonable accommodation for his disability at this time. 2021001291 4 Claim 5 On April 4, 2020 Complainant emailed AM looking for detail opportunities requesting that he keep him in mind if anything became available at the Abita Springs office. AM affirmed that Complainant made a general request for a detail but there were no details available at the time. The record is devoid of evidence that a detail was available during the relevant time frame. Claim 6 On May 23, 2020, Complainant requested a reasonable accommodation to return to West Slidell because Slidell Main was causing too much stress for him. Complainant had 16 employees to work with at West Slidell while Slidell Main had 60 employees. He also felt the hours at Slidell Main were more stressful. PM consulted with the Occupational Health Nurse Administrator (N1) and the District Reasonable Accommodation Committee Chairman (DRACC) and decided without going through a formal District Reasonable Accommodation Committee (DRAC) process to grant Complainant his request. On May 29, 2020 PM emailed M1, and other management officials explaining that he received a request for reasonable accommodation, and after consulting with his manager (M2), N1 and DRACC, it was determined the request was reasonable, proper, and appropriate. PM further confirmed that effective June 6, 2020, Complainant and S1 would return to their original Form 50 assignment, duty station, and bid shift. On June 3, 2020 M1 emailed M2 seeking to prevent Complainant’s return to West Slidell. M1 raised numerous issues he had with Complainant returning to West Slidell including that he felt threatened. Specifically, M1 explained that he learned from MPOO (PM’s supervisor at the time), that PM had previously stated to him that if he puts Complainant back in West Slidell, “one of those guys will get hurt.” M1 affirmed that since he never threatened anyone, it was fair to assume that Complainant threatened to harm M1. M2 found such a complaint required an investigation prior to returning Complainant to West Slidell. Accordingly, on June 19, 2020, an Initial Management Inquiry Process (IMIP) was conducted by the Manager of Learning Development & Diversity District. The inquiry was completed on June 23, 2020. Complainant was returned to West Slidell on July 6, 2020, 38 days after PM’s May 29, 2020 email approving the accommodation. 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 “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 2021001291 5 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Under EEOC regulations implementing the ADAAA, an individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities include, but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. 29 C.F.R. §1630.2(i)(1)(i). The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. 29 C.F.R. §1630.2(j)(1)(i). “Substantially limits” is not meant to be a demanding standard. Id. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. 29 C.F.R. §1630.2(j)(1)(ii). An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Id. The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with this, the definition of disability shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. 29 C.F.R. § 1630.1(c)(4). The undisputed record establishes that Complainant is substantially limited in interactions with others. Specifically, Complainant’s depression and anxiety conditions increase when having to interact with large groups of people. He does much better in a controlled environment with a limited number of people. Accordingly, we conclude that Complainant is an individual with disability within the meaning of the Rehabilitation Act. The record is also undisputed that Complainant is a qualified individual with a disability, within the meaning of the Rehabilitation Act. Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 2021001291 6 Assuming Complainant established a prima facie case of disability discrimination, the Agency provided legitimate, non-discriminatory explanations for its employment actions. As to claim (1), M1 attested that Complainant was issued a Letter of Warning in July 2019, for failing to follow instructions during the closing of the West Slidell Post Office when he did not oversee the placarding process for the evening's dispatch that was just put in place. M1 affirmed that held an II with Complainant over an incident where Complainant allegedly used expletives on the workroom floor. Complainant was not issued discipline for the incident because a witness would not make a written statement. Additionally, M1 attempted to hold interviews with Complainant regarding his attendance record; however, management agreed to temporarily move Complainant instead of discipline. Regarding claim (2), Complainant was charged AWOL because he failed to properly report his absence prior to the scheduled start of his tour of duty. With respect to claim (3), M1 affirmed that Complainant was placed on the Deems Desired List because he exhibited a pattern of requesting nonscheduled leave just after any type of criticism or discipline. M1 noted that Complainant had not provided any documentation for any of his prior absences even though it was required. As to claim (4), M1 asserted that Complainant was not returned to West Slidell for several reasons including: COVID-19 prevented employees from moving from one facility to another to stop the spread of the virus and that a threat assessment was being conducted following Complainant’s comments. Finally, regarding claim (5), AM affirmed that Complainant made a general request for a detail but there were no details available at the time. While it is apparent that Complainant and M1 had personality conflicts and Complainant may have felt unjustifiably targeted for discipline the record does not support a finding of pretext or discriminatory animus on the part of the management officials involved in those claims. Hostile Work Environment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was 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). 2021001291 7 Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris 510 U.S. at 17, 23; Enforcement Guidance on Harris, at pp. 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Id. A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982) We agree with the Agency that the incidents Complainant cites in support of his harassment claim, taken together, are not sufficiently severe or pervasive to be unlawful. Rather, to the extent that such incidents occurred, the incidents challenged by Complainant reflect common workplace disagreements between supervisors and subordinates that relate to disagreements with managerial decisions and processes. Without evidence of an unlawful animus, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014); (Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Even assuming, the alleged incidents were sufficiently severe or pervasive, the record is devoid of evidence that any responsible management official was motivated by discriminatory animus. As a result, Complainant has failed to establish that he was subjected to a hostile work environment. Reprisal Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a time and in such manner that a retaliatory motive may be inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005); Dominica H. v. Dep't of Health & Human Servs., EEOC No. 0120150971 (Nov. 22, 2017). The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 § II.B(2) (Aug. 25, 2016). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). 2021001291 8 The record establishes that Complainant’s request for reasonable accommodation (i.e., return to his Form 50 position at West Slidell) was delayed due to an investigation that was initiated to determine whether the allegation that Complainant threatened to harm M1 was credible. While M1’s complaint may have been motivated in part by interpersonal issues with Complainant, the record is devoid of evidence establishing that any other management official relevant to this claim held retaliatory animus toward Complainant. Accordingly, we find insufficient evidence of reprisal as alleged. Denial of Reasonable Accommodation Under the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1614.203(c). To establish that Complainant 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 a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002). We assume for purposes of this decision that Complainant is a qualified individual with a disability. After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. 1614. app. § 1630.9. Thus, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5. Reasonable accommodation includes such modifications or adjustments as job restructuring, the acquisition or modification of equipment or devices, and reassignment to a vacant position. 29 C.F.R. § 1630.2(o)(2)(ii); see also, Alan F. v U.S. Postal Serv., EEOC Appeal No. 0120162635 (Feb. 22, 2018). An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation. Id. In determining whether there has been an unnecessary delay in responding to a request for a reasonable accommodation, relevant factors include: (1) the reason(s) for delay; (2) the length of the delay; (3) how much the individual with a disability and the employer each contributed to the delay; (4) what the employer was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. Enforcement Guidance on Reasonable Accommodation, Question 10, n. 38. 2021001291 9 We find that under the circumstances present, it was reasonable for M2 to initiate an investigation to determine whether M1’s allegation that Complainant threatened him was credible prior to moving Complainant back to West Slidell. In addition, the evidence does not support a finding that M1’s June 2020 email to M2 was motivated by discriminatory animus. The record shows that the decision to return Complainant was delayed by a few weeks while the IMIP was conducted. Upon its conclusion, Complainant was immediately returned to West Slidell. We do not find the delay unreasonable given the unknown threat potential at the time. Complainant has presented no evidence that the granted accommodation was ineffective. Accordingly, we find that the Agency did not deny or unreasonably delay granting Complainant reasonable accommodation in violation of the Rehabilitation Act. 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. 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. 2021001291 10 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. 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 12, 2022 Date