[Redacted], Noah S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Oct 19, 2021

Appeal No. 2021001818 (E.E.O.C. Oct. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Noah S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001818 Agency No. 4B-110-0068-20 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 December 3, 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 Driving Safety Instructor at the Agency’s Queens Processing and Distribution Center in Flushing, New York. On May 14, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and in reprisal for prior protected EEO activity when, on January 21, 2020,2 management would not accept his medical documentation and sent him home. 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 record reflects Complainant was sent home by the Safety Manager on January 31, 2020. The date of January 21, 2020 is believed to be a simple error. 2021001818 2 The Agency accepted the foregoing claim and then conducted an investigation into the matter. The investigation showed that on November 8, 2019, Complainant was admitted to the hospital and diagnosed with stage 4 colon cancer. (Complaint File, p. 71). Thereafter, he was out of work for some time. On January 9, 2020, Complainant’s doctor provided a note stating Complainant could return to work on January 10, 2020, if his work was “a desk job and does not involve driving a vehicle or carrying heavy loads (more than 20 lbs).” The note further stated that Complainant would need to take off work for monthly chemotherapy, and that Complainant’s ability to work would be reassessed. (Complaint File, p. 129). According to the Safety Manager, Complainant showed up to work on January 23, 2020. (Complaint File, pp. 84, 88-89, 102). He was given a letter informing him that a Reasonable Accommodation Committee meeting would be held on January 30, 2020 to discuss his abilities and limitations. (Complaint File, p. 134). An additional note from Complainant’s doctor, dated January 28, 2020, stated Complainant “may return to work on 1/31/20 if his work is a desk job and involves limited driving or carrying light loads (fewer than 20 pounds).” It again mentioned the need for time off for monthly chemotherapy. (Complaint File, p. 130). Complainant faxed the January 28, 2020 note to the Agency and clocked in for work on January 31, 2020. (He missed the January 30, 2020 Reasonable Accommodation Meeting). A few hours later, his immediate supervisor (S1) called him into the office to let him know the Safety Manager was sending him home for the safety of both the Complainant and the Agency because Complainant had not been medically cleared to return to work. (Complaint File, pp. 75-80, 88-89). The Safety Manager contends she checked with Labor Relations and the health unit to verify if Complainant’s January 2020 medical notes were acceptable to return Complainant to work and they concurred that the medical notes did not clear Complainant for full duty. (Complaint File, p. 86). The Agency sent another letter on February 12, 2020, about a Reasonable Accommodation Meeting to be held on February 21, 2020. (Complaint File, p. 135). Complainant attended this meeting, but he did not have his Medication Information and Restriction Assessment Form (RAC Form B). During the meeting, Complainant was advised he would need to provide additional documentation that clarified his ability to drive. (Complaint File, pp. 73, 85, 87-88, 105, 111- 113). On February 25, 2020, Complainant submitted a RAC Form B that indicated Complainant could not lift heavy weights or work on days he had chemotherapy. The form noted Complainant could continuously sit, stand, and drive/operate moving equipment. His doctor wrote, “No other restriction. Can drive and operate equipment as long as needed.” (Complaint File, pp. 132-133). The Occupational Health Nurse Administrator (OHNA) and Safety Manager stated the form was not filled out completely and Complainant was notified of this. Complainant stated the OHNA called him on February 25, 2020, to tell him they wanted to know exactly how long he could sit and stand even though the form noted it was continuous. Complainant did not submit any additional information and therefore his Reasonable Accommodation case was closed on May 4, 2020. (Complaint File, pp. 73, 85, 96). 2021001818 3 Complainant later submitted a third doctor’s note dated May 14, 2020, that stated Complainant “has no restrictions at work, except for lifting heavy weights.” Complainant was able to perform “continuous activity either standing or sitting for his entire shift of 8 hours and there are no restrictions with respect to his ability to drive.” (Complaint File, p. 131). Complainant was subsequently returned to work. In his formal complaint, Complainant asserted that on January 31, 2020, management refused to accept his medical documentation and allow him to return to work, instead sending him home. Complainant contends there was no part of his regular job duties he could not perform. He states his only restriction was lifting heavy weights, which is not part of his regular job duties. Complainant denied needing any accommodation and states that the Reasonable Accommodation Meeting was requested by the Safety Manager. (Complaint File, p. 72). 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 followed. Neither Complainant nor the Agency filed a brief on appeal. ANALYSIS AND FINDINGS Standard of Review 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”). Disparate Treatment Complainant alleges that he was subjected to disparate treatment.3 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 3 We note again that Complainant denied needing any accommodation and states that the Reasonable Accommodation Meeting was requested by the Safety Manager. 2021001818 4 For a 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. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to 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). 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 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, nondiscriminatory reason for its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). For his claim of reprisal, Complainant must show that: (1) he engaged in a 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). Assuming, arguendo, that Complainant established a prima facie case of disability and reprisal, the responsible Agency officials has articulated legitimate, nondiscriminatory reasons for its actions. Agency management witnesses stated Complainant was sent home because he was not medically cleared or had not provided sufficient documentation to show he was medically cleared, to perform the essential functions of his job. The Safety Manager indicated that Complainant returned to work on January 23, 2020, after being out of work for months. He came to work unannounced and clocked in without having been cleared to work. He had a doctor’s note that allowed for him to return to work if his work as a desk job involving no heavy lifting (more than 20 pounds) and limited driving. He also needed to be off work for monthly chemotherapy. The Safety Manager indicated Complainant was not sent home that day, but he was informed that he needed an updated medical note before he could be returned to work. The Safety Manager states she was informed on January 31, 2020, Complainant had reported to work without authorization or medical clearance for full duty. After consulting with Labor Relations and OHNA, the Safety Manager made the decision to send the Complainant home. She states Complainant provided updated medical documentation on May 15, 2020 indicating he was cleared to return to work at that time. Complainant contends his January 28, 2020 doctor’s note allowed for “limited driving” which is all his position requires. 2021001818 5 However, the record shows that the Agency directed Complainant to provide additional medical documentation to clarify his abilities and limitations with respect to sitting, standing, and driving, which the Agency states are essential job functions. The record reflects that Complainant’s position description lists the duties and responsibilities of a Driving Safety Instructor as “Administers vehicle familiarization, skills course training and conducts controlled drivers training.” (Complaint File, p. 128). The Safety Manager contends this requires Complainant to take over the driving of a vehicle if a driver is unable to safely drive the vehicle. (Complaint File, p. 86). The Safety Manager pointed to the Agency’s Employee and Labor Relations Manual, section 865, which states that the decision to clear an employee to return to work rests with management and that management can require employees who have been absent due to illness, injury, surgery, or hospitalization to submit documentation in order to clear their return to work when management has a reasonable belief, based on reliable and objective information, that the employee may not be able to perform the essential functions of his position. (Complaint File, p. 155-156). The record also shows that Complainant was returned to work after he provided the doctor’s note dated May 14, 2020 which clarified his ability to perform those functions. (Complaint File, pp. 78, 91). We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency's explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Here, Complainant did not provide any arguments on appeal. In addition, although he averred that other employees did not have their commercial driver’s licenses, he stated he was not aware of any other Driving Safety Instructors who were sent home due to medical restrictions within the last year. He stated there were other Driving Safety Instructors who had operations and came back without being treated like he was, but he declined to provide any names or details to substantiate this statement. (Complaint File, p. 75-79). In terms of his claim for reprisal, again Complainant did not provide any arguments on appeal. Complainant alleged retaliation, but he stated the retaliation was not an EEO matter. Instead, Complainant stated his second line supervisor (S2) wanted him to train someone wrong on a vehicle to save time and Complainant refused to do so. Complainant avers this happened several times in July and August 2019. He further stated the Safety Manager has an issue with Complainant writing letters to her supervisors when these things occur. (Complaint File, p. 74). The Safety Manager indicated she was unaware Complainant had sent letters to her supervisors. (Complaint File, p. 90). However, the record does show Complainant previously filed an informal EEO complaint in 2013 (Case Number 4B-110-0023-14). (Complaint File, p. 127). The record does not indicate whether any of Complainant’s supervisors or the Safety Manager were aware of this prior complaint and Complainant does not state that it is related to the current matter. 2021001818 6 Therefore, Complainant has not shown the nexus necessary to prove a prima facie case for reprisal for prior protected EEO activity, and as stated, the Agency has provided legitimate, nondiscriminatory reasons for its actions. In this case, there is no evidence of unlawful motivation for the Agency's actions. As such, we find that Complainant did not establish that the Agency discriminated against him based on disability or in reprisal for prior protected EEO activity. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s final agency decision finding no discrimination because the preponderance of the 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. 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. 2021001818 7 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 October 19, 2021 Date