[Redacted], Rodrigo C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Aug 18, 2021

Appeal No. 2020000879 (E.E.O.C. Aug. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rodrigo C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2020000879 Hearing No. 420-2019-00131X Agency No. 4G-320-0030-18 DECISION On October 19, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from an October 11, 2019 final Agency order on 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Carrier (City), Q-01, at the Fort Walton Beach Post Office in Fort Walton Beach, Florida. On March 16, 2018, Complainant filed an EEO complaint, as amended, alleging the Agency subjected him to discrimination and harassment based on his race/color (Caucasian/white), sex (male), reprisal for prior protected EEO activity under Title VII, and disability2 when: 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. 2020000879 2 1. On November 29, 2017, he was sent home prior to the end of his tour by his first line supervisor (S1 - Supervisor, Customer Services, Afro-American/Black, female, aware Complainant had kidney stones and of his EEO activity accusing her of discrimination). 2. On December 2, 2017, S1 informed him that rest stops are designated for lunch and break times; 3. Even though he submitted an annual leave request a week before that covered February 15, 2018 - February 16, 2018, he was charged leave without pay (LWOP) for those days; and 4. He was not reasonably accommodated from February 21 - 28, 2018, when he was denied light duty by his second line supervisor (S2 - Acting Postmaster of the Fort Walton Beach Post Office, generally aware of Complainant’s prior EEO case).3 After an EEO investigation the Agency gave Complainant a copy of the report thereof and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Both parties filed motions for summary judgment and opposed the other party’s motion. The AJ granted the Agency’s motion for summary judgment for the reasons advanced by the Agency. The final Agency order adopted the AJ’s finding of no discrimination. The instant appeal followed. In its motion for summary judgment, the Agency argued as follows. Complainant did not make out a prima facie case of race/color and sex discrimination because none of the comparative employees he cited were treated favorably, did not make out a prima facie case of disability discrimination because he is not qualified individual with a disability, and did not make out a prima facie case of reprisal because there is no causal connection between his EEO activity and events in issues 1 - 4. Even if Complainant made out prima facie cases, the Agency had non- discriminatory reasons for what occurred. Specifically, on issue 1 S1 stated Complainant returned from his route on his own accord after exceeding his allotted time, on issue 2 S1 explained that because Complainant texted her that he was running late on his route deliveries due to excessive bathroom breaks, she texted back he had a street and lunch break and any excessive comfort stops need to be taken as an extended lunch break, issue 3 was caused by an administrative error, and regarding issue 4 no light duty work was available. 2 Complainant stated that he had bilateral stents placed in his kidneys on November 27, 2017, to reduce risk of forming kidney stones. As a result, he needed to drink extra fluids which caused the need for frequent urination. 3 We have changed the dates Complainant was not provided light duty for accuracy. 2020000879 3 On appeal, Complainant misreads the AJ’s decision to mean she found discrimination and argues that since it was implemented by the Agency, he should have been awarded remedies. In reply, the Agency argues that its final order should be affirmed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. To prevail under the disparate treatment theory, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Under the Rehabilitation Act and the Commission's regulations, 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. 29 C.F.R. §§ 1630.2(o), 1630.2(p). For purposes of analysis we will assume Complainant is a qualified individual with a disability. 2020000879 4 On issue 1, Complainant related he called S1 from his route advising he was behind on his deliveries since he needed to make extra stops to use the toilet, and S1 told him to return to the post office and go home. Complainant stated he complied, then filed a grievance. S1 countered that she did not send Complainant home, rather she asked if he could complete his route, and the next thing she knew he returned to the office. While this is a disputed fact, we find it is not material. Complainant admitted he did not ask for reasonable accommodation before this event occurred. Also, the medical release he submitted after his November 27, 2017 surgery stated he had no restrictions. Complainant submitted statements given in support of a class action grievance against S1 that she did not treat subordinates with respect. The union won this grievance. One female employee stated that when she was behind on her route deliveries, S1 would tell her to return, took nothing else into consideration, and reprimanded people for this even if it was out of their hands. Statements by ten more employees related S1 told and/or demanded they return if they are running behind on route deliveries. Complainant submitted a statement by Coworker (CW) 1, who he characterized as a Black male, that related he had medical issues for years that cause him to urinate more often than normal, S1 knew this, and she has not given him any issues for this reason. But as argued by the Agency, Complainant did not show S1 treated CW1 favorably because there is no record evidence that CW1 was late in delivering his route as Complainant was. On issue 1, we find that it is more likely than not that S1 treated Complainant in accordance with her routine behavior with others, not based on his protected groups. On issue 2, which regards S1 texting Complainant that rest stops are designated for lunch and break times, Complainant does not state he asked for a reasonable accommodation, e.g., a modification of some kind that would allow him to take frequent breaks and meet the performance standard numbers for delivery. Also, again at this time Complainant’s most recent medical documentation stated he had no restrictions. As found above, S1’s behavior was consistent with how she treated many others, and we agree with the Agency’s assessment that Complainant did not show S1 treated others favorably. Regarding issue 3, we find the LWOP charge was caused by administrative error. Complainant’s contention to the contrary is based on speculation, which is insufficient to create a genuine issue of material fact. Concerning issue 4, Complainant submitted a form to the Agency on the afternoon of February 20, 2018, that both listed medical restrictions signed off by his physician and requested light duty through February 28, 2018 - meaning starting on February 21, 2018. He returned to full duty on March 1, 2018. The limitations included one hour of bending/stooping while working a day, no pushing, pulling, or lifting over 10 pounds, and driving one hour a day. 2020000879 5 On the form, Complainant, a union steward, wrote he could perform desk duties like union and EEO meetings. S2 denied Complainant’s request because no light duty within his restrictions was available. In his EEO case, Complainant suggested he lost 40 hours of work - he requested a remedy of 40 hours of administrative leave. As an initial matter, there is no indication in the record that participating in union and EEO meetings on behalf of employees is a function the Agency could assign Complainant. Given the inherent conflict of interest this would create, we find it unlikely it could do so. Complainant stated there was light duty available within his restrictions. A clerk in his post office provided a grievance statement on behalf of Complainant that from February 21 - 28, 2021, there was available clerk craft work like mark ups, hot case letters, the box section and 2nd request write ups, and this was partly corroborated by another clerk’s grievance statement. In denying the grievance S2 wrote there was no obligation, as argued by the union, to reduce the hours of the supplemental work force to provide light duty for Complainant, and there was no light duty available within Complainant’s restrictions. In an EEO investigative affidavit, Complainant wrote he was told by a clerk that even though another clerk’s workers’ compensation claim was denied, she was getting light duty which he could have done. But this does not point to the availability of light duty - it merely points to someone already being assigned to do light duty. Further, given the timing of Complainant’s request, the Postmaster had little time to consult with him and act on his request before Complainant returned to full duty on March 1, 2018. We find that given the quality of evidence Complainant produced, he has not created a genuine issue of material fact that light duty within his restrictions was unavailable. He failed to prove discrimination on issue 4.4 CONCLUSION For the reasons herein, the Agency’s final order is AFFIRMED. 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. 4 Because we find that none of the incidents in Complainant’s complaint were discriminatory, he failed to prove harassment. 2020000879 6 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. 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. 2020000879 7 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 August 18, 2021 Date