[Redacted], Sandra N., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jun 21, 2021

Appeal No. 2020001342 (E.E.O.C. Jun. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sandra N.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020001342 Agency No. 1C-441-0058-18 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated October 23, 2019, finding no discrimination concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Equipment Operator, P-05, in the Agency’s Cleveland Ohio Processing and Distribution Center. On September 26, 2018, Complainant filed an EEO complaint alleging discrimination based on disability when: 1. On May 25, 2018, she was charged with three hours of sick leave; 2. On May 25, 2018, and August 31, 2018, she was not assigned a holiday or paid holiday pay for what should have been her holiday; 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. 2020001342 2 3. On August 31, 2018, she was not accommodated when she was worked outside her medical restrictions; 4. On or around October 5, 2018, she was not assigned a holiday, not paid holiday pay, and not paid for working what should have been her holiday; 5. On October 5, 2018, she was worked outside her medical restrictions; 6. On or around November 12, 2018, she was not assigned a holiday, not paid holiday pay, and not paid for working what should have been her holiday; 7. On or around January 21, 2019, she was not assigned a holiday, not paid holiday pay, and not paid for working what should have been her holiday; and 8. On or around February 15, 2019, she worked but did not receive holiday pay. After completion of the investigation of the complaint, Complainant did not request a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final decision finding no discrimination. Complainant had cervical radiculopathy and aggravation of right shoulder tendonitis which were chronic and permanent conditions. Her restrictions included: three hours sitting, walking, standing, reaching, repetitive motions with her waist and elbows, squatting, kneeling, and climbing; lifting five to ten pounds; pushing or pulling up to 40 pounds; and working three hours a day and four days week. Regarding claim 1, Complainant did not initially make her request to her supervisor; rather it went through the computer system. When she later brought the matter to the attention of her supervisor, the supervisor submitted a pay adjustment to reflect three hours Office of Workers’ Compensation Programs (OWCP) related leave. Regarding claims 3 and 5, Complainant clarified that she was accommodated with her modified work assignment and she was really alleging the denial of holiday pay. Complainant did not indicate that she worked beyond her medical restrictions. Regarding claims 2, 4, 6, 7, and 8, Complainant alleged that she was not granted her holiday leave on the Friday before a Monday holiday as her designated holiday or she was not paid her holiday pay for working on the Monday of the holiday for Memorial Day and Labor Day (claim 2), Columbus Day (claim 4), Veterans Day (claim 6), Martin Luther King Day (claim 7), and President’s Day (claim 8) which all fell on a Monday. The Agency stated that Complainant worked a modified work assignment under her medical restrictions for three hours on four days a week, Tuesday - Friday, with Saturday - Monday as non-scheduled workdays. Complainant did not work on Mondays and received Federal Employees Compensation Act (FECA) benefits; and thus, she was not eligible for holiday pay for Mondays as she claimed. Complainant filed the instant appeal.2 2 Complainant indicates on appeal that she did not receive a report of investigation. The record reveals that on August 29, 2019, the Agency mailed, via a priority mail, the report of 2020001342 3 ANALYSIS AND FINDINGS 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 (EEO MD-110), Chap. 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"). Assuming without deciding (for the purposes of this decision) that Complainant is an individual with a disability, we find that the Agency accommodated Complainant for her disability. Complainant clarified her claims and acknowledged that she was assigned to a modified work assignment within her restrictions. Regarding her holiday pay claims, after a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a pretext for discrimination. Further, Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination 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. 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. investigation to Complainant’s address, but it was unclaimed and was returned to the Agency on September 27, 2019. 2020001342 4 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. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2020001342 5 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 June 21, 2021 Date