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

Equal Employment Opportunity Commission

Oct 25, 2021

Appeal No. 2021002381 (E.E.O.C. Oct. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rayford H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021002381 Agency No. 1G-324-0007-20 DECISION On February 16, 2021, 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 February 3, 2021 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer Operator at the Agency’s West Palm Beach Production and Distribution Center in West Palm Beach, Florida. On November 27, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and age (66) when, around the middle of September 2019, he noticed that his PS Form 50 showed his job title as a level 7 Motor Vehicle Operator.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 Complainant raised additional issues in his formal complaint, but these do not appear to have been discussed during Complainant’s EEO counseling. Pursuant to 29 C.F.R. §1614.107(a)(2), 2021002381 2 The Agency initially dismissed the formal complaint for untimely EEO counselor contact. However, Complainant appealed, and the Commission reversed and remanded the claim due to improper dismissal. EEOC Appeal No. 2020001803 (Aug. 31, 2020). The Agency accepted the remanded claim and conducted an investigation into the matter. The report of investigation shows that Complainant testified he was hired by the Agency as a 10- point disabled veteran on January 7, 1984, after being medically discharged from the military due to a back injury. He stated he had made management aware of his medical condition. In early 2018, Complainant was officially employed by the Agency as a Tractor Trailer Operator, Level 8. (Complaint File, p. 190). His job duties as a Tractor Trailer Operator for the Agency involved transporting mail by tractor trailer and loading and unloading mail. (Complaint File, p. 193). However, he stated that as of December 2017, he was unable to perform these duties due to his injury and because he failed his Department of Transportation certification exam. Complainant reported his Class A commercial driver’s license was suspended because of his medical condition and medications prescribed to him. The record indicates Complainant then worked in the Transportation Office to file papers and maintain records, although the exact date he began working in the Transportation Office is not clear from the record. Complainant’s supervisor (“Supervisor”) contends that, from June 29, 2018 to on or about September 19, 2019, Complainant was working full time on limited duty performing office work. (Complaint File, p. 177). However, Complainant contends he was on leave for retirement during this time frame. Regardless of this dispute, the record shows that on August 4, 2018, a new PS- 50 was issued for Complainant in which his position was changed from Tractor Trailer Operator, Level 8, to Motor Vehicle Operator, Level 7. (Complaint File, p. 191). However, Complainant did not become aware of this change until approximately mid-September 2019 when he received the PS-50 with his final retirement papers. Complainant believes the reassignment was made due to his age and disability based on prior statements made by Supervisor to him and another employee about retiring so younger employees could do the work and because he was tying up a tractor trailer operator position. (Complaint File, p. 116). Supervisor states Complainant lost his bid for the Tractor Trailer Operator position and became an unassigned regular because Complainant was unable to perform this job. He said the Union requested the Tractor Trailer Operator job be bid off by seniority and at that time Complainant was assigned to a residual bid that was level 7. He admits Complainant was only notified of this change via his PS Form 50. (Complaint File, pp. 176, 178). These forms are supposed to be automatically generated and mailed, but do not usually have any tracking on them to show whether or when it might have been received by Complainant. (Complaint File, pp. 253-255). the only claim accepted for investigation was the one discussed in counseling. Any other issues are not currently before the Commission on appeal and will not be addressed in this decision. 2021002381 3 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. On appeal, Complainant contends he has not been given due process because the investigator is employed by the Agency and the record contains misinformation and misleading statements from Agency management and the investigator. He states he never requested or submitted an application for temporary light duty as stated; one of his comparators was also unable to perform his job as a level 8 driver; and the Union never notified Supervisor in writing to assign Complainant to a residual bid at a lower pay grade (nor was the union aware of Supervisor’s actions). He further contends that a Class A Commercial Driver’s License (CDL) is required for both Level 7 and Level 8 positions in the Postal Transportation Department and that Supervisor knew Complainant did not have a CDL when he reassigned the Complainant. The Agency did not file 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 on the bases of disability and age.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 that Complainant has not argued that he requested reasonable accommodation of his disability from the Agency, and therefore do not address whether the Agency refused to accommodate the disability. 2021002381 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. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency's explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Disability Discrimination To establish a prima facie case of disability discrimination under a disparate treatment theory, Complainant must demonstrate that: (1) he is an “individual with a disability” (2) he is “qualified” for the position held or desired; (3) he was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination and/or denied a reasonable accommodation. See Josiah M. v. U.S. Postal Serv., EEOC Appeal No. 2019003865 (Feb. 14, 2020). Assuming for the sake of argument that Complainant has established he is an individual with a disability, Complainant has failed to establish his prima facie case because he has not shown that he was qualified for the Tractor Trailer Operator, Level 8 position. 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). “Essential functions” are the fundamental duties of a job, that is, the outcomes that must be achieved by someone in that position. Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). The position description for the Tractor Trailer Operator positions lists the functional purpose of the position as requiring that an individual “[r]egularly operates a heavy duty tractor-trailer”. The duties and responsibilities of the position require, among other things, that an individual operates a tractor-trailer, picks up and delivers bulk quantities of mail, and loads and unloads mail. (Complaint File, p. 193). Complainant acknowledges that as early as December 2017, he was unable to perform his daily job duties of loading and unloading mail to and from the processing and distribution center to the local stations and transporting the mail by tractor-trailer. He said he was not able to drive anymore because of his Department of Transportation (DOT) certification exam failure. (Complaint File, p. 114). A Driver License Check document submitted by Complainant states that as of January 24, 2018, Complainant’s license was “currently canceled, suspended, revoked, disqualified, or withdrawal.” (Complaint File, p. 125). The Agency also stated Complainant could not drive and was unable to perform his job as a result. (Complaint File, pp. 175-176). 2021002381 5 Thus, the evidence shows Complainant was unable to perform the essential functions of the Tractor Trailer Operator position, namely operating a heavy duty tractor trailer and loading and unloading mail. Therefore, he was not a “qualified” individual with a disability. Because Complainant cannot establish his prima facie case of disability discrimination, we find there was no discrimination. Age Discrimination Complainant has not established a prima facie case for age discrimination. To establish a prima facie case of age discrimination, Complainant must show that he was over forty years of age, that he was subjected to an adverse employment action, and that he was treated less favorably than other similarly situated employees younger than himself, i.e. he was accorded treatment different from that given to persons who are considerably younger than he. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). If complainant establishes a prima facie case, the burden of production shifts to the agency to articulate a legitimate, non-discriminatory reason for the challenged action, which Complainant must then prove is pretextual. Although Complainant has shown that he is over 40 years of age and that he was subjected to an adverse employment action in being reassigned to a lower level position, Complainant has also failed to establish a prima facie case for age discrimination in that he did not identify any similarly situated employees outside of his protected group who were treated more favorably, and he did not demonstrate that age was a factor in being reassigned. It is well established that in order for comparative evidence relating to other employees to be considered relevant, those employees must be “similarly situated” so that all relevant aspects of the employees' work situation are identical or nearly identical. See Anderson v. Dep't of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003); Stewart v. Dep't of Defense, EEOC Appeal No. 01A02890 (Jun. 27, 2001). The comparator must be similar to the complainant in substantially all aspects, so that it would be expected that they would be treated in the same manner. See Grappone v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002) citations omitted. Likewise, the Commission has previously found that, another employee cannot be considered “similarly situated” to the complainant if the complainant and the employee have different medical restrictions. See Conkle v. U.S. Postal Serv., EEOC Appeal No. 01281545 (May 10, 2001); Kirkman v. U.S. Postal Serv., EEOC Appeal No. 01975352 (May 18, 2000); see also, Woody v. Tenn. Valley Authority, EEOC Appeal No. 0120063987 (Dec. 1, 2007) (complainant with permanent medical restrictions was not similarly situated to his co-workers, whose medical restrictions were temporary). Complainant identified a younger, but also disabled comparator (Comparator). Comparator was also over 40, although younger than Complainant. 2021002381 6 However, Complainant has failed to show Comparator was similarly situated in that Complainant did not establish that they had similar restrictions. Complainant stated he was permanently and totally disabled due to a back injury and he cannot drive or load and unload mail. He states Comparator has been on limited duty for a shoulder injury, but he failed to provide evidence to show what restrictions, if any, Comparator has, whether Comparator’s restrictions were permanent or temporary, or to support his assertion that Comparator also could not drive. Although Complainant alleged Supervisor teased him and another older driver about retiring so younger employees could do the work, Supervisor stated that age was not a factor in Complainant’s reassignment, it was because Complainant could not drive. Supervisor stated he was unaware of Complainant’s age and that Complainant was unable to perform his job, so he lost his bid and became an unassigned regular. He reassigned Complainant to fill a Full-Time Regular position until the Agency had a chance to hire new employees. Thus, Complainant has failed to show there was a nexus between his age and the adverse employment action. Even assuming Complainant had shown that that there were similarly situated comparatives treated differently, Complainant has not shown that the Agency's articulated reasons for different treatment were pretextual. In sum, the record, viewed as whole, lacks preponderant evidence that it was discriminatory animus that motivated the Agency. At all times, the ultimate burden of persuasion lies with Complainant. Complainant has failed to meet this burden. Aside from Complainant's allegations and conclusory statements, there is no evidence in the record that would support a finding that the Agency's reassignment was pretextual. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. 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. 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. 2021002381 7 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. 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. 2021002381 8 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 25, 2021 Date