[Redacted], Susie K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionJul 8, 2021Appeal No. 2020001094 (E.E.O.C. Jul. 8, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susie K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020001094 Agency No. 1J-607-0032-19 DECISION On November 22, 2019, 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 October 18, 2019, final decision concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, 06/O, at the Agency’s Chicago International Service Center (ISC) in Chicago, Illinois. On May 13, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Adjustment Disorder) and reprisal (prior EEO activity) when, since on or around June 21, 2018, she was not accommodated per her medical restrictions when she was issued a Notice of Removal (NOR). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). 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. 2020001094 2 In accordance with Complainant’s request, 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 her to discrimination or reprisal as alleged. In Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720140025 (Sept. 28, 2015), the Commission affirmed a final order implementing an AJ's decision finding that the Agency had discriminated against Complainant in an earlier complaint. As part of the remedies, the Commission ordered the Agency to “offer Complainant reinstatement to her former position, or a substantially equivalent one, at a mutually agreeable location within 30 calendar days of the date this decision is final." On January 4, 2016, the Agency offered Complainant one of five Mail Processing Clerk Positions available on Tour 3 at the Chicago, Illinois, ISC. Complainant declined these positions on February 3, 2016 and appended a note to the job offer stating that she now resided in Katy, Texas and wanted relocation or reassignment to a Level 6 Mail Processing Clerk position in the Houston area.2 On July 29, 2016, Complainant was offered a Full-Time Mail Processing Clerk position in the Houston District. On September 22, 2016, Complainant accepted the job offer. Complainant also provided a letter dated September 22, 2016 from her psychiatrist (P1) who recommended a daytime and “less than full-time work schedule” for Complainant as she would need time to transition back into the workplace. On October 17, 2016, the Houston District Reasonable Accommodation Committee (DRAC) Chairperson (DRACC) sent Complainant a detailed letter asking for her and P1 to fill out forms related to her medical condition and request for accommodation. In addition to DRACC’s letter, an additional letter was sent directly to P1 from a nurse within the Agency’s Occupational Health Services office, asking him to fill out the attached DRAC Form 2-B (a detailed questionnaire seeking information from a medical provider) regarding Complainant’s condition and requested accommodations. On December 14, 2016, DRACC sent Complainant a Second Request for Medical Information via Certified Mail. Complainant received the second request and asserted that she never received the first one. On January 14, 2017, DRACC sent Complainant a letter via Certified Mail notifying Complainant that DRAC would be conducting an in-person meeting with her on January 25, 2017 at the District Office in Houston, Texas. Complainant was advised to provide medical information based upon current factors. Complainant completed Form 2-A. She noted that she has Adjustment Disorder with Depressed Moods. Complainant stated that whenever she encountered “life major stressors, [she] become[s] overwhelmed and suffer[s] from depression which makes it impossible for [her] to 2 The Agency treated this note as a request for a reasonable accommodation. However, the record is devoid of evidence establishing that Complainant raised the issue of accommodation at this time. 2020001094 3 face daily activities that require concentration.” When asked how her condition affects her ability to perform the duties of her position, Complainant responded: My impairment of Adjustment Disorder does not make me unable to perform in my current position because I have been assigned to Tour II (day shift) as a result of a successful bid. Complainant also stated: Working outside of my normal work schedule would create a stressful life for event for me, which would worsen my Adjustment Disorder. The reasonable accommodation I am requesting is to remain in my normal work schedule, the day shift, which will prevent a major life stressor and allow me to perform the core functions of my job. P1 also responded to the DRAC Form 2-B. P1 stated that Complainant has Adjustment Disorder with Depression Symptoms. In response to the Agency’s question of how her restrictions relate to her medical condition, P1 stated as follows: Patient has medical restrictions of only working during the day. Working during the night is major life stressor, exacerbates the patient’s Adjustment Disorder and significantly restricts her ability to perform the essential functions of thinking and concentrating. In response to the Agency’s request for P1 to assess how each listed medical condition/impairment impacts Complainant in her life at work, P1 stated as follows: The patient medical history shows work related stress has proven detrimental to the patient’s psychological well-being - pt has episodic episodes of paranoia and hallucinations restricting her ability to [ ] concentrate. Per pt. she can perform the core duties of her position with accommodations. P1 also stated: Upon patient’s return to work, I am recommending a less than full work schedule temporarily as she will need time to transition back into the workplace. On February 8, 2017, the DRAC found Complainant’s medical documentation insufficient to proceed with her request for a reasonable accommodation. Specifically, the DRAC noted, in part: In your case the medical you provided was based on your medical records dating back to 2004. In our meeting, you indicated that the “life stressor” that were present then no longer exist. Upon review of the information provided by [P1] on 2020001094 4 09/22/16, It is not readily apparent that you have a need for reasonable accommodation based on your condition and current circumstances. Therefore, in order to proceed we will need the following information: Your treating physician's diagnosis of your current medical condition giving rise to your request for Accommodation, Your treating physician's statement of your medical limitations and/or restrictions, Your treating physician's assessment of the duration of your restrictions, and Your treating physician's assessment as to how the impairment affects your ability to perform the essential functions of your position… As an option, you may choose to allow the DRAC medical consultant to contact your medical provider directly for additional information or clarification as it specifically relates to your request for reasonable accommodation. To do so, complete Sections I & Ill of PS Form 2488, Authorization to Use or Disclose Protected Health Information, and mail or fax it immediately. Although it is not required, doing so may speed up the process significantly.3 On March 15, 2017, the DRAC sent Complainant a letter informing her that it was closing her DRAC case due to her failure to provide the requested medical documentation. An interactive meeting was held on July 21, 2017 with Complainant. A Labor Relations Specialist (LRS) who was at the meeting on July 21, 2017, affirmed that Complainant stated during the meeting that she needed a daytime job due to stress and that she has problems at night with working; however, Complainant had no medical information to support her working during days. LRS also asserted that Complainant said that she would consider applying for a carrier position in Houston but that she wanted to go back to Chicago. In addition, LRS stated that Complainant said that she had moved into her own apartment in the Houston area; that she did not want to break her lease and that her son was getting ready to start school but that if she was given enough notice she could, “make it happen.” On July 26, 2017, DRACC sent a letter to Complainant summarizing the history of her DRAC case and further notified her that during the July 21, 2017 meeting, it was determined that she is assigned to the Chicago International Service within the Great Lakes District. DRACC further advised that Complainant’s Form 60 bid assignment as a Pay Location 521 Parcel Post Distribution Clerk in Chicago fulfills her reasonable accommodation request to work on the day 3 The record is devoid of evidence to indicate that Complainant ever authorized the Agency to communicate directly with her treating physicians. 2020001094 5 shift.4 On November 30, 2017, Complainant’s was issued a Return to Duty Notice which states in part: Pursuant to the [Commission] Decision, dated September 5, 2017, on your Petition for Enforcement, you are scheduled to report to Chicago International Service Center, 11600 Irving Park, Chicago, IL 60688-9998, effective Thursday, February 1, 2018. Your start and end times are 7:00 a.m. - 3:30 p.m. and the non- scheduled days are Monday and Tuesday. Complainant returned to work on February 1, 2018. The documentary evidence shows that between February 1 and June 21, 2018, Complainant worked a total of nine days. On May 5, 2018, two letters were sent to Complainant’s address of record, one by Priority Confirmation and the other by First Class Mail informing her that her unscheduled absence from work must be substantiated with medical documentation or other acceptable evidence of incapacity to work or of need to care for a family member. On May 9, 2018, an Investigatory Interview Notice was sent to Complainant’s address of record via the above noted two means instructing her to report for a pre-disciplinary interview on Saturday, May 19, 2018, at 10:00 a.m. On June 13, 2018, the Agency issued a NOR to Complainant for being: (1) Absent without Leave (AWOL) since May 5, 2018, without providing acceptable documentation for her absence; and (2) Failure to Maintain Regular Attendance for taking approximately 60 hours of unscheduled and unexcused absences between February 7, 2018 and April 28, 2018. Complainant asserts that she faxed medical information to the Leave Control Supervisor (LCS) on June 6, 2018, but that LCS did not accept it, stating that the documentation had been submitted to the United States Postal Inspection Service. The record contains a letter from a family physician (FP) dated June 4, 2018, who stated that Complainant was evaluated by another physician in his clinic for acute anxiety and panic disorder related to her having to commute extensively for her work. The physician also noted in this letter that Complainant thereafter saw another practitioner in his clinic who recommended that Complainant take a medical leave of absence through June 2, 2018. FP continues to state the following: I saw her on 5/24/18. She related that she had been transferred to Chicago, but because her 15-year-old son was in school in Houston, she was having to commute on many days. Her stress of the job is causing panic attacks, leading to her inability to concentrate at work. I made a medical determination that she was currently totally incapable of performing any of her job duties, and I 4 On September 5, 2017, the Commission held that it could not determine if Complainant had been reinstated in accordance with the previous order so it ordered the Agency to provide such documentation. See Christeen H. v. U.S. Postal Serv., EEOC Petition No. 0420170016 (Sept. 5, 2017). The Commission later determined that the Agency had complied with its order. 2020001094 6 recommended an extension of her medical leave of absence. Since FMLA Instructions indicate that terms such as "indefinite” are not acceptable, I determined that she is totally incapable of work through 10/31/18. Therefore, my medical opinion is that she is unable to perform any of her employment duties for the period from 4/29/18 through 10/31/18. Her medical condition will be followed, and her state of disability will be reassessed periodically. Complainant opined that she should not have been issued the NOR because the medical documentation she sent to LCS should have been sufficient to excuse her absence.5 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, 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”). Denial of Reasonable Accommodation Under the Commission's regulations, an agency is required to make reasonable accommodation 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. A request for a modification at work because of a medical condition is a request for reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, Question 1 (Oct. 17, 2002) (“Enforcement Guidance on Reasonable Accommodation”). It is undisputed that Complainant is an individual with a disability. After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. pt. 1614. app. § 1630.9. Thus, “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); 5 Complainant filed a grievance disputing the NOR and subsequently it was settled on February 13, 2019, with the NOR being removed from Complainant’s record and Complainant being ordered to report for duty on March 16, 2019. 2020001094 7 see also 29 C.F.R. pt. 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5. Reasonable accommodation includes such modifications or adjustments as job restructuring, the acquisition or modification of equipment or devices, and reassignment to a vacant position. 29 C.F.R. § 1630.2(o)(2)(ii); see also, Alan F. v U.S. Postal Serv., EEOC Appeal No. 0120162635 (Feb. 22, 2018). When the need for accommodation is not obvious, an agency may require that the individual with a disability provide documentation of the need for accommodation. 29 C.F.R. pt. 1630 app. § 1630.9. The agency may require only the documentation that is needed to establish that the individual has a disability and that the disability necessitates reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 6. Here, the record establishes that Agency officials engaged in the interactive process to determine what accommodations were needed and could be provided to Complainant. Complainant had requested to be placed in a position in the Katy/Houston area after she was awarded reinstatement in a previous complaint because she had moved. Complainant then began requesting a daytime shift as an accommodation. The Agency requested medical documentation in support and additional medical documentation for clarification. Ultimately, the record reveals that, based on the Commission’s previous order and Complainant’s stated desire, Complainant was offered a position on the day shift in Chicago. Complainant then took large amounts of paid and unpaid leave through April 26, 2018. Complainant was then in an AWOL status beginning May 5, 2018. Complainant failed to submit medical documentation supporting her absences. As a result, management issued Complainant the Notice of Removal for Failure to Maintain Regular Attendance and AWOL. We conclude that the Agency met its obligations to engage in the interactive process with Complainant and provided Complainant the reasonable accommodation she requested. Complainant presented no evidence that the provided accommodation was ineffective. Additionally, Complainant did not provide sufficient medical documentation to support her absences or any request for a different accommodation prior to the decision to issue the NOR. See Cassell v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112654 (Oct. 14, 2011) (declining to find failure to accommodate where complainant did not submit requested documentation). Accordingly, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. We also find that the undisputed record establishes that Complainant took an excessive amount of unexcused and unscheduled leave, failed to respond to the Agency’s five-day notice requesting medical documentation in support of her unexcused absences, and failed to participate in the investigatory interview. Accordingly, we find that the Agency’s articulated, legitimate, non-discriminatory explanation is substantiated by the evidence herein. The record is devoid of discriminatory or retaliatory animus on the part of any responsible management official and Complainant has presented no evidence demonstrating that the Agency’s reasons were pretextual. Accordingly, we find that Complainant has not proven unlawful disability discrimination or reprisal with respect to the June 13, 2018 NOR. 2020001094 8 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. 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. 2020001094 9 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’s signature Carlton M. Hadden, Director Office of Federal Operations July 8, 2021 Date Copy with citationCopy as parenthetical citation