[Redacted], Pamala L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2020000891 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pamala L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000891 Agency No. 1G-731-0028-19 DECISION On October 23, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 11, 2019 final decision concerning her equal employment opportunity (EEO) complaint alleging 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency’s Oklahoma City Processing and Distribution Center in Oklahoma City, Oklahoma. On May 24, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her on the bases of disability (left foot) and in reprisal for prior protected EEO activity when: 1. since on or about December 12 and 13, 2018 and February 20, 2019, she was not permitted to work; and 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. 2020000891 2 2. on or about April 2, 2019, she was issued a Notice of Removal dated April 2, 2019 for violation of Standard of Conduct. After the investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its October 11, 2019 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. ANALYSIS AND FINDINGS 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). 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 since on or about December 12 and 13, 2018 and February 20, 2019, she was not permitted to work. 2020000891 3 The Acting Manager, Distribution Operations was Complainant’s immediate supervisor. The Acting Manager noted that she was not involved in the decision to prevent Complainant from working because she was on leave. She noted that the Senior Plant Manager was the deciding official regarding Complainant not working on December 12 and 13, 2018, and February 20, 2019. The supervisor recalled that the light duty packet stated that Complainant should not use either hand. The Senior Plant Manager (Manager) stated that during the relevant period, he was Complainant’s fourth level supervisor. He stated that on the relevant dates there was no work available within Complainant’s medical restrictions. The Manager stated that Complainant submitted two leave slips, one on February 7, 2019 for 80 hours (February 13, 2019-February 26, 2019), and the second slip on February 9, 2019 for 172 hours for surgery on her left foot resulting from an off-the-job injury. Complainant did not work from February 20, 2019 to March 2, 2019. Further, the manager stated that Complainant did not work from April 6, 2019 to May 6, 2019, due to her pending removal. However, Complainant was on paid administrative leave during this period. Regarding claim 2, Complainant alleged that on or about April 2, 2019, she was issued a Notice of Removal dated April 2, 2019 for violation of Standard of Conduct. The supervisor stated that she issued Complainant the April 2, 2019 Notice of Removal for falsifying her medical documentation. Specifically, the supervisor stated that two forms which Complainant had submitted contained handwritten notes added. The Registered Nurse noticed the notes and called Complainant’s doctor for clarification, whereupon the doctor asserted that no handwritten notes were added to his Work Release form. The record contains a copy of the April 2, 2019 Notice of Removal. Therein, the supervisor placed Complainant on notice that she would be removed from the Agency on May 2, 2019, based on providing altered medical documentation in support of absence from work. During the March 6, 2019 investigative interview, Complainant was asked who wrote the handwritten note and she claimed she did not know. Complainant also claimed that she did not falsify documentation. The supervisor stated that Complainant’s explanation was considered but determined unpersuasive in excusing her actions. As a result of Complainant’s grievance settlement dated July 11, 2019, the parties agreed to rescind and remove Complainant’s April 2, 2019 Notice of Removal from her official files. There were no provisions for backpay or restoration of lost benefits. After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that management’s proffered explanations for the events at issue were a pretext designed to mask discrimination or retaliation playing a role in the matters. 2020000891 4 Denial of Reasonable Accommodation Under the Commission’s regulations, an 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. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Here, Complainant claimed that she was denied reasonable accommodation during the relevant period. Evidence supports the Agency’s finding that Agency management determined that there was no work within Complainant’s restrictions which was why she was not permitted to work. The record includes a Light Duty Approval letter dated November 20, 2018, signed by her supervisor, which found that based on the medical limitations Complainant was recommended for light duty. Specifically, the supervisor recommended Complainant to work light duty “Automation/030†and that the light duty may vary based on needs of service. According to a Lead Mail Processing Clerk, he offered Complainant work for four hours in automation but there was no work for her sitting down. Complainant refused the offer and went home. There is no evidence of record to dispute this assertion. As such, we find adequate support for the Agency’s conclusion that Complainant was offered an effective accommodation but declined to accept it. As such, there is no support for a finding that the Agency violated the Rehabilitation Act. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. Because we have affirmed the Agency’s final decision, we find it unnecessary to address alternative grounds for disposition of portions of claim 1, for untimely EEO Counselor contact. 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. 2020000891 5 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. 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. 2020000891 6 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 May 24, 2021 Date Copy with citationCopy as parenthetical citation