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

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2020000899 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michelle L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000899 Agency No. 4G-320-0142-18 DECISION On October 21, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 2, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Sales, Services Distribution Associate (SSDA) at the Agency’s Brunswick Post Office in Brunswick, Georgia. On August 30, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her because of her race (Caucasian), sex (female), disability (on-the-job injury), and age (over 40) when: 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 2020000899 1. on or about May 14, 2018, she was placed into a residual vacancy assignment with accommodations and not permitted to remain working at the Jekyll Island, Georgia Post Office; and 2. on an unspecified date, management changed the duties for a bid at the Jekyll Island Post Office to be outside of her restrictions in an attempt to keep her from bidding on the position. After the investigation of the claims,2 the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on October 2, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Denial of Reasonable Accommodation3 Under the Rehabilitation Act and the Commission’s implementing regulations, a federal agency 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 accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Here, we will assume for purposes of analysis only, and without so finding, that Complainant is an individual with a disability. The record reflects that management, pursuant to its obligations to Complainant, as an employee with an on-the-job injury, did what was required with respect to providing Complainant with reasonable accommodation under the Rehabilitation Act. The Agency extended Complainant a Rehabilitation Job Offer of a Modified Distribution Clerk dated January 16, 2001. The offer indicated that Complainant was limited to lifting no more than 20 pounds intermittently, intermittent standing for 3-4 hours, and sitting intermittently 3-4 hours. 2 On September 13, 2018, the Agency issued a final decision dismissing the instant formal complaint for failure to state a claim. On appeal, the Commission reversed the Agency’s dismissal and remanded the matter to the Agency for further processing. Michelle L. v. United States Postal Service, EEOC Appeal No. 2019000654 (February 12, 2019). Following the Commission’s decision, the Agency processed the remanded claims in accordance with 29 C.F.R. § 1614.108, which is now the subject of the instant appeal. 3 The Agency noted while it was not clear if the claims accepted for investigation included a failure to accommodate claim, it would nevertheless address the accommodation issue. 3 2020000899 Complainant was provided modified duty assignments beginning on January 16, 2001, in the Brunswick Post Office, and worked at Jekyll Island Post Office on and off from June 4, 2013 through May 14, 2018. Complainant pleaded with the former Postmaster to leave her at Jekyll Island Post Office because Complainant deemed it the most fitting position for her, and noted that she had developed an excellent rapport with the customers there. In her affidavit, Complainant stated before working at Jekyll Island, in June 2013, she had a three-way conversation with a former Postmaster and a Human Relations Specialist, regarding Complainant’s eligibility to work at Jekyll Island, and that they all agreed that she could handle assignments there. She noted, moreover, that the Union President supported her, even though he started filing grievances against her working there. Regarding grievances, the record reflects that after management extended the above-modified job assignments to Complainant, the union filed grievances challenging management’s extension of this job offer to Complainant. The record contains a copy of a Class Complaint Grievance Step 3 Settlement dated August 20, 2015, indicating that the parties agreed that the bid currently held by Complainant in the Jekyll Island Post Office “will be re-posted as a level 7 NTFT Lead Clerk in accordance with the provisions outlined in Article 37 and the Lead Clerk Q & A’s dated May 4, 2012.” The record contains a copy of the Postmaster, Brunswick Post Office’s Reposting of Duty Assignment dated February 10, 2016. Therein, the Brunswick Postmaster placed Complainant on notice that in accordance with the Step Grievance Settlement, her duty assignment would be abolished. Moreover, the Postmaster stated that effective February 20, 2016, Complainant would become an unassigned regular and may be reassigned to a work schedule within her medical restrictions and she would be advised of her new assignment on or before March 5, 2016. Complainant was ultimately reassigned to work for the Agency at the Brunswick Post Office. Based on this evidence, we concur with the Agency’s conclusion that Complainant had not shown that management failed to provide her with a reasonable accommodation. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or 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, non-discriminatory reason for its actions. See Texas Department of Community 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). 4 2020000899 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, as here, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted that on or about May 14, 2018, she was placed into a residual vacancy assignment with accommodations and not permitted to remain working at the Jekyll Island, Georgia Post Office. The Postmaster of the Brunswick Post Office asserted that Complainant was provided with a Temporary Limited Duty Assignment when she injured her knee. The Postmaster further noted that she was not the management official responsible relating to Complainant not being permitted to work at the Jekyll Island Post Office. The Postmaster averred that she does not recall discussing the incident with Complainant and was not aware of any alleged incident of Complainant not being allowed to work at the Jekyll Post Office. With respect to Complainant’s allegation that the Postmaster was threatened by other management/union officials to remove Complainant from her position, the Postmaster asserted that she was never threatened by anyone. The former Postmaster of the Brunswick Post Office stated that he worked at the Brunswick Post Office from February 2009 to March 2012. He confirmed that Complainant was provided a permanent Modified Duty Assignment at the Brunswick Post Office and then to the Jekyll Island Post Office which was modified to accommodate a clerk at the unit which had similar work restrictions as Complainant. Regarding claim 2, Complainant alleged that after May 14, 2018, management changed the duties for a bid at the Jekyll Island Post Office to be outside of her restrictions in an attempt to keep her from bidding on the position. The Postmaster explained that Complainant’s bid assignment was changed based on the needs of the service and that Amazon “has impacted this office tremendously.” Specifically, she stated that “Saturdays were added to the position to have a dispatch clerk in the evenings. Sundays were added to the position due to needs of service, Amazon is delivered on Sundays and a clerk is needed to work the parcels.” 5 2020000899 Here, Complainant failed to meet her ultimate burden of proving, by a preponderance of the evidence, that the Postmaster acted on the basis of a prohibited reason. In sum, Complainant has simply provided no evidence to support her claim that her treatment was the result of her race, sex, disability or age. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.4 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. 4 Because we affirm the Agency’s finding of no discrimination concerning claim 2, we find it unnecessary to address alternative dismissal grounds (i.e. untimely EEO Counselor contact). 6 2020000899 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 June 14, 2021 Date