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

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020003423 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rashad W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020003423 Hearing No. 40-2019-00111x Agency No. 4J-6060125-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 13, 2020, final decision concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether Complainant established that the Agency discriminated against him based on his color, disability, or race when it denied his request to return to a craft position. 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. 2020003423 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor Customer Services at the Agency’s Chicago Niles Branch in Chicago, Illinois. Complainant stated that on August 4, 2018, he emailed a Human Resources Generalist to request a return to a Letter Carrier craft position. Complainant wrote that his health had been affected by stress caused by work and financial concerns, and that he no longer wished to be a supervisor. On August 20, 2018, Complainant forwarded the email to a Human Resources Manager (HRM) (African American, Black) and requested a return to a carrier craft position as soon as possible. Later that day, HRM responded that there were no current opportunities to return to the craft. Report of Investigation (ROI) at 73, 101-3. Complainant stated that on August 25, 2018, he emailed the Postmaster (PM) (Black, Black), and explained his request and the steps he had already taken. Complainant stated that PM did not respond to his email, but he received an email from HRM to arrange a meeting. Complainant stated that he met with HRM on September 17, 2018, and he provided his medical documentation. ROI at 73-4. On September 24, 2018, HRM received a response from Headquarters that there was an obligation to first assign bargaining unit employees into positions and that there were too many unassigned in Chicago. Specifically, there were 294 unassigned carriers who needed to be placed. ROI at 107. On October 10, 2018, Complainant was informed that his request was denied and asked if he was willing to work as a Mail Hander. ROI at 108. Complainant stated that he was not interested in a Mail Handler position because it would mean a major pay cut. ROI at 75. On November 13, 2018, Complainant requested a meeting with HRM to discuss his request because he did not receive a reason for the denial. HRM responded that there was no point to a meeting because Complainant’s request was denied, and the same process would apply. ROI at 109. HRM stated that a memorandum of understanding (MOU) with the Union stipulated that, prior to allowing any supervisors to return to craft positions, all unassigned regulars must be placed into regular assignments, and in this case, there were 294 unassigned regulars who had priority. ROI at 88. On November 20, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic),2 color (Brown), and disability (gastritis and duodenitis) when on August 20, 2018, Complainant’s request to return to a craft position was denied. 2 The Commission notes that the term “Hispanic” typically denotes national origin rather than race. However, herein the Commission acknowledges Complainant’s self-identification of his race as Hispanic. 2020003423 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request when Complainant did not file his pre-hearing submission, in violation of the AJ’s orders. The AJ noted that Complainant responded to her Order to Show Cause and stated that his failure to file was a mistake and unintentional. However, the AJ found that Complainant did not show good cause for his non-compliance and remanded the complaint to the Agency to issue a final decision, pursuant to 29 C.F.R. § 1614.110(b). On March 13, 2020, the Agency issued a final decision. As an initial matter, the Agency noted that Complainant’s claim was also an allegation of a failure to accommodate and analyzed the claim as such. The Agency found that Complainant did not show that he was an individual with a disability. The Agency noted that, while Complainant’s medical documentation showed a diagnosis of gastritis and duodenitis, Complainant did not explain the severity; expected duration; or limitations to any major life activities. Accordingly, the Agency found that Complainant did not show that he was an individual with a disability, and he was not entitled to a reasonable accommodation. The Agency also found that Complainant did not establish a prima facie case of discrimination based on color, disability, or race. While Complainant identified two comparators who were treated more favorably, the Agency determined that they were not similarly situated because they were returned to craft positions at least eleven months prior to Complainant’s request. The Agency also found that management officials articulated legitimate, nondiscriminatory reasons for their actions, and that Complainant did not establish pretext for discrimination. The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of his appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Complainant argues that HRM treated him differently than two African American comparators, who were former supervisors allowed to return to craft positions. Complainant states that, while one comparator (C1) was returned via an EEO settlement agreement, HRM was the Agency official who allowed C1 to return and applied the MOU differently to C1. Complainant also states that HRM was the Agency official who allowed the second comparator (C2) to return to a craft position. Complainant asserts that the HRM stated that there were 294 unassigned carriers at the time of his request, but that the Agency did not provide the number of unassigned carriers at the time of C2’s request. Complainant states that, while the Agency stated that the difference in time of the requests resulted in differing circumstances, the same MOU was in place at the relevant times. Complainant argues that the difference in application of the MOU was disparate treatment. 2020003423 4 Complainant also states that he made his request on August 4, 2018, and that the Agency converted 172 unassigned carriers on September 15, 2018, and that HRM denied his request based on a future conversion. Regarding the reasonable accommodation claim, Complainant asserts that there was “no informal” dialogue with HRM and that Complainant was “stripped of the right to go through the process.” Complainant requests that he be allowed to provide new evidence regarding the conversions of unassigned carriers in 2020. Complainant states that the list of 294 unassigned carriers has since been depleted and that no one has reached back out to him to update his status. Complainant requests that the Commission reverse the Agency’s final decision. Agency’s Contentions The Agency states that it correctly determined that Complainant was not subjected to discrimination based on his color, disability, or race. The Agency asserts that Complainant cannot establish that he is an individual with a disability because he did not show that his medical conditions substantially limited any of his major life activities. The Agency argues that Complainant failed to show that his comparators were similarly situated. The Agency notes that Complainant stated that C1’s request to return to craft was done through an EEO settlement agreement, and that the Commission has held that employees who receive certain treatment through a grievance or EEO settlement are not similarly situated to other employees for purposes of evidence of discrimination. In addition, while the same MOU may have been in effect, the number of unassigned carriers at the time of Complainant’s request far exceeded the number at the time of C2’s request, and therefore, their situations in terms of whether there were sufficient positions to accommodate a request to return to craft were not similar. The Agency also states that, at the time of Complainant’s request, management officials had been planning a large one-time conversion of 172 carriers to career positions, which made Complainant’s situation different from his comparators’ situations. While Complainant argued that HRM made an exception to the MOU in the past, and that it failed to do so in his case, the Agency asserts that Complainant provided no evidence that the MOU was not followed in the other circumstances or that the number of unassigned carriers exceeded the number of available positions, making a return to a craft position not permissible. The Agency also argues that any new evidence of conversions in 2020 is irrelevant to the denial of Complainant’s request, which was made in 2018. The Agency requests that the Commission affirm its final decision finding no discrimination. 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 Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review 2020003423 5 “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”). ANALYSIS AND FINDINGS New evidence on appeal As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See id. at Chap. 9, § VI.A.3. Here, Complainant requested that the Commission allow new evidence regarding the conversion of unassigned carriers in 2020. However, we find that this evidence is not relevant because Complainant alleged discrimination due to the Agency’s actions in 2018, and these 2020 conversions are not relevant to Complainant’s claims. Accordingly, the Commission declines to consider this new evidence on appeal. Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to 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. See 29 C.F.R. §§ 1630.2(o), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to accommodate Complainant. While Complainant requested to return to a craft position, the Agency denied his request because it had 294 unassigned carriers that it was obligated to prioritize for placement into positions. However, the Agency offered Complainant a Mail Handler position. ROI at 108. We note that, while the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance at Question 9. 2020003423 6 In addition, a reassignment may be made to a position at a lower pay if a vacant, funded position at the complainant’s pay, for which the complainant is qualified, is not available. 29 C.F.R. pt. 1630 app. § 1630.2(o). Here, we find that the Agency properly offered Complainant a Mail Handler position as an alternative accommodation.3 On appeal, Complainant asserts that there was “no informal” dialogue with HRM and that he was “stripped of the right to go through the process.” However, Complainant stated that he met with HRM on September 17, 2018. ROI at 74. Complainant testified that during the meeting, HRM raised the MOU and informed Complainant that his return would have to be after the unassigned regulars. Complainant Deposition at 38. As such, we find that Complainant’s own statements contradict his assertion that there was “no informal” dialogue with HRM. In addition, there is no evidence that Complainant was “stripped” of his right to go through the reasonable accommodation process. After receiving a request for reasonable accommodation, “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 Enforcement Guidance at Question 5. Here, the record shows that Complainant and HRM engaged in the interactive process, and while the Agency denied Complainant’s specific request for a craft position, it offered him a Mail Handler position as a potential accommodation. While Complainant testified that he “never rejected” the offer, he stated that he was not interested in the Mail Handler position. Complainant Deposition at 51, ROI at 75. Complainant also argues that the Agency failed to contact him to update him when there was a possibility to grant his request. However, we find that Complainant ended the interactive process when he effectively declined the Agency’s offer of a Mail Handler position, and that the Agency was no longer obligated to continue in the interactive process. See Timika O. v. Dep’t of the Navy, EEOC Appeal No. 0220140008 (Mar. 9, 2017). We note that, while Complainant requested a meeting with HRM, he did not express any interest in discussing the Mail Handler position, but he wanted to know who in “the Area” denied his request and asked for a list of supervisors who returned to the craft. Complainant also confirmed that he had no interest in the Mail Handler position. ROI at 109, 75. Accordingly, we find that Complainant did not establish that the Agency failed to accommodate him because the Agency offered Complainant a reasonable accommodation. 3 While Complainant stated that a Mail Handler position would have resulted in a “major pay cut,” the record does not contain any evidence showing if the Agency could have placed Complainant into a Mail Handler position with similar pay. ROI at 75. 2020003423 7 Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on color, disability, and race, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. HRM stated that he denied Complainant’s request based on the MOU because the Agency had a duty to ensure that all unassigned carriers are given assigned positions first. Based on the 294 unassigned carriers who had priority at the time, HRM informed Complainant that there was no availability for him to return to a craft position. ROI at 88. 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). On appeal, Complainant argues that HRM applied the MOU differently to C1. However, HRM stated that he initially denied C1’s request, but the Union supported C1’s return to craft. HRM stated that he disagreed with the Union’s interpretation of the MOU but “backed off” because the Union was on record as supporting C1’s return. ROI at 90. In Complainant’s case, the Union President stated that he did not oppose Complainant’s return to a craft position; however, the Union President informed Complainant that he needed to understand that any return needed to be within the guidelines of the “conversion memo.” ROI at 106. HRM stated that, even if the Union did not have a problem with Complainant’s return to a craft position, they still had to follow the MOU. ROI at 90. While HRM “backed off” of his initial opposition to C1’s return to a craft position, we find that there is no evidence showing that there was a similar number of unassigned carriers needing placement at the time of C1’s request. 2020003423 8 In addition, HRM stated that C1’s return to a craft position was due to a resolution through the EEO process. ROI at 90. The Commission has previously held that differences in treatment due to grievances and settlement agreements are not probative of discrimination. See Tilghman v. U.S. Postal Serv. Appeal No. 01966704 (June 10, 1998); Love v. Tenn. Valley Auth., EEOC Appeal No. 01950547 (May 3, 1996); Ellis v. U.S. Postal Serv., EEOC Petition No. 03930106 (Sept. 9, 1993). Complainant also argues that the Agency did not provide the number of unassigned carriers at the time of C2’s request. HRM stated that when C2 made her request several years ago, there were not 294 unassigned carriers and that the circumstances were very different. ROI at 89. Complainant corroborated that C2’s return was approximately two years prior to his request. ROI at 77. While we note that the Agency did not specify the number of unassigned carriers when C2 made her request to return to a craft position, an Agency merely has to articulate legitimate, nondiscriminatory reasons for its actions, and then it is Complainant’s burden to prove that the Agency’s actions were pretext for discrimination. See Complainant v. Dep’t of Homeland Security, EEOC Appeal No. 0120123327 (Apr. 28, 2015); Yoon v. Dep’t of the Army, EEOC Request No. 0520110577 (Dec. 16, 2011); O’Loughlin v. Social Security Administration, EEOC Request No. 05980011 (Apr. 26, 2001). Here, the Agency met its burden when HRM stated that the number of unassigned carriers at the time of C2’s request was “not 294” and the circumstances were different years ago. Complainant did not provide any evidence showing that HRM’s statements were not worthy of belief. Rather, the record contains the Headquarters email noting the need to place 294 unassigned carriers and C1’s settlement agreement confirming the circumstances of his return to a carrier position. ROI at 107, 143-4. Complainant also argues that HRM denied his request based on a future conversion of 172 unassigned carriers on September 15, 2018. However, we find that this shows that the Agency followed through with its obligation to convert unassigned carriers, which were pending at the time of Complainant’s request. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Further, Complainant stated that he believed that his request was denied because HRM and PM were “afraid of the grievance” from the Union. ROI at 75. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on his color, disability, or race when it denied his request to return to a craft position. 2020003423 9 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 finding Complainant did not establish that the Agency discriminated against him based on his color, disability, or race when it denied his request to return to a craft position. 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. 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. 2020003423 10 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, Director Office of Federal Operations August 16, 2021 Date