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

Equal Employment Opportunity Commission

Aug 25, 2021

Appeal No. 2020002498 (E.E.O.C. Aug. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Myles W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020002498 Agency No. 4G-700-0146-19 DECISION On February 10, 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 January 22, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full-time City Carrier at the Agency’s Pineville Post Office in Pineville, Louisiana. Complainant was issued a Notice of Removal (NOR) on June 27, 2017, charging “unacceptable conduct” for drinking intoxicating beverages while on duty. Through the negotiated grievance process, the June 2017 NOR was reduced to a 14-day suspension. On January 3, 2018, the Agency issued Complainant another NOR for the same charge but a different incident. On January 30, 2018, the parties resolved the later NOR through a last chance agreement (LCA).2 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 January 30, 2018 LCA was effective for two years, January 30, 2018 to January 30, 2020. The LCA allowed for “immediate removal” if Complainant failed to comply with its provisions. In pertinent part, the LCA required Complainant to “participate in VA [Intensive Outpatient 2020002498 2 On June 10, 2019, the Agency issued Complainant a third NOR, effective immediately, alleging failure to comply with the LCA. On September 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Alcoholism, Post Traumatic Stress Disorder, and Depression) and reprisal for prior protected EEO activity (prior grievance and personal issues between his family and Postal management) when the Agency issued him a Notice of Removal. The Agency accepted Complainant’s claim for investigation. During the EEO investigation, Complainant stated that an Officer-in-Charge from another Post Office (S1) was transferred to Pineville to fire him. Complainant stated that S1’s husband, who also works for the Agency, and his father used to be friends until they had a disagreement and S1’s husband wanted Complainant fired. S1 stated that the Agency had concerns about Complainant driving under the influence of alcohol to perform his carrier duties. S1 stated that Complainant did not comply with the LCA when he failed to provide proper documentation of attendance at Alcoholics Anonymous (AA) meetings or to participate in phase 2 of the Department of Veterans Affairs’ (VA) Substance Use Disorder program. S1 stated, during inquiry, Complainant stated that he stopped attending because he did not have private insurance and had to pay each time he participated. S1 stated that she accepted Complainant’s documentation but could not accept attending church or providing audio support at church as meeting AA requirements of the LCA. S1 stated that Complainant admitted that he failed to complete the VA program when he refused to be accepted for in-patient detox on May 7, 2019 or attend all required AA meetings. S1 stated that Complainant was caught drinking on- duty twice while operating a motor vehicle and given two last chance agreements and he had not complied. S1 stated that the Agency tried to assist Complainant, but he decided to deal with his drinking in his own manner, which is unacceptable. In pertinent part, the investigative record contains the documents that follow. • A May 22, 2019 letter from the Alexandria, Louisiana VA Medical Center Veteran’s Justice Outreach (VJO) Program stating: On 4/24/19, [Complainant] presented to our facility requesting to re-engage in treatment with Substance Use Disorder Services (SUDS). From October- December 2018, the veteran actively attended outpatient treatment with SUDS and completed Phase I. He did not engage with SUDS Phase II, reportedly due to his work schedule. Treatment Program] for alcohol abuse for as long as VA [Healthcare personnel] deems employee must participate[;] . . . attend weekly [Alcoholics Anonymous] meetings for entire two years[; and] . . . submit acceptable documentation to the Postmaster on a weekly basis that proves [attendance].” 2020002498 3 On 5/3/19 the veteran met with SUDS staff regarding three possible treatment options: -Alcohol Detox and admission to a 28-day residential substance abuse treatment in the community or a VA facility. -Alcohol Detox, with weekly individual sessions in SUDS clinic and (5) Alcoholics Anonymous meetings per week. . . . -Alcohol Detox, with nightly AA meetings on his own. No SUDS program involvement after detox. The plan was for the veteran to present for Alcohol Detox at our Urgent Care on 5/6/19 to start the process. He presented to Urgent Care for Detox on 5/7/19. The VA doctor in Urgent Care discussed the veteran being admitted to the acute psychiatric unit for alcohol treatment, but the veteran declined. Veteran requested to attempt trial of medication on an outpatient basis. • A May 29, 2019 handwritten note to file from S1 stating: Statement regarding phone conversation with Veterans Justice Outreach Officer ([VJOO]) . . . regarding the letter I had received from him dated 5/22/19. When asked if [Complainant] had engaged in Phase II, [VJOO] informed me that [Complainant] had opted for a different choice than the options given him. . . . [VJOO] said there was a concern over cost b/c [Complainant] did not carry personal insurance. [Complainant] requested medication to assist in detoxing at home rather than be admitted. [VJOO] stated [Complainant] has a history of trying to figure things out himself rather than following guidance. [VJOO] went over each of the three options in the letter, one at a time, and specifically said [Complainant] did not properly engage in any of them. Following the EEO investigation, 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 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. The instant appeal from Complainant followed. On appeal, Complainant stated that his prior supervisors, between January 2018 and April 2018 and October 2018 and March 2019, accepted the manner in which he submitted documentation to comply with the LCA. Complainant stated that the Officer-in-Charge since March 2019, S1, changed the LCA terms almost weekly. Complainant stated that he discussed his work schedule and personal finances with VA and determined that there was not a program appropriate for him there. 2020002498 4 Complainant stated that he obtained a handwritten letter from his recovery group leader that he attended AA weekly meetings at church. Complainant stated that the group leader asked Complainant’s wife to handwrite the letter (because his printer was broken) and he signed it and provided his telephone number. Complainant stated that S1 never contacted the group leader to confirm attendance. Complainant stated that he also attended a men’s group on Mondays and addictions were discussed in the group. Complainant stated that in-patient detox was not required by the LCA and he “detox[ed]” voluntarily with medication at home for five days in May 2019. Complainant stated that S1 must have some influence over the VA Representative, VJOO, to make him issue the letter he did not supporting Complainant. Complainant stated, in October 2019, he completed a seven-day detox in a hospital. Complainant stated that the LCA does not say he cannot have alcohol; it just states he cannot drink on duty. 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 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 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 Complainant to prevail, he 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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, non-discriminatory 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 2020002498 5 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). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on disability or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency stated that Complainant was caught drinking intoxicating beverages on- duty twice and was given two last chance agreements and failed to comply with both. The Agency stated that it attempted to assist Complainant, but he decided to deal with his drinking in his own manner, which is unacceptable. The Agency stated that Complainant completed only one phase of at least two phases of the VA’s SUDS program. It noted the LCA required two years of AA meetings, participation in treatment until VA health professionals deemed it was no longer needed, and acceptable proof of attendance at treatment and meetings. The Agency stated that removal was appropriate, particularly considering the nature of Complainant’s position operating a motor vehicle. We concur with the Agency in finding that Complainant has not presented sufficient evidence to establish the existence of an unlawful discriminatory or retaliatory motivation in connection with his removal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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). 2020002498 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. 2020002498 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 August 25, 2021 Date