[Redacted], Theo B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Mar 17, 2022

Appeal No. 2021000165 (E.E.O.C. Mar. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Theo B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021000165 Agency No. 4K-280-0048-20 DECISION 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 September 22, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a City Letter Carrier at the Gastonia Post Office in Gastonia, North Carolina. On March 18, 2020, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency subjected him to discriminatory harassment based on disability (lumbar strain, right leg radiculopathy, major depressive disorder, panic disorder, insomnia, anger, irritability, uncongenial work environment, nightmare disorder, and post-traumatic stress disorder), genetic information (medical records and Office of Workers’ Compensation Program/OWCP claims), and age (YOB: 1966) 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. 2021000165 2 1. On December 19, 2019, Complainant’s detail assignment ended, and he was moved to another Post Office where management worked him outside his medical restrictions. 2. On December 23, 2019, management refused to pay Complainant without the approved leave slip. 3. On January 3, 2020, management instructed Complainant to work outside his medical restrictions. 4. On dates to be specified,2 the Postmaster paid Complainant incorrectly. After its investigation into the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant did not respond. On September 22, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit any statements or briefs in support of his appeal. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 2 Complainant testified that on December 19, 2019, he was sent home; on January 4, 2020, he was on annual leave; and he was paid incorrectly from December 24, 2019 through January 4, 2020 and from March 2, 2020 - March 5, 2020. 2021000165 3 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant testified that he suffered an on-the-job injury on September 27, 2014, which resulted in lumbar strain and right leg radiculopathy. Because of this injury, Complainant stated that his work limitations included: not to exceed lifting of 45 pounds; pushing/pulling not exceeding 50 pounds; no bending/twisting, squatting/kneeling, ladder/stairs; and no standing/walking exceeding two hours. Complainant further noted that management was aware of his injury and limitations as his workers’ compensation claim was accepted by OWCP. claim. Complainant stated, and submitted medical documentation in support, that he was also diagnosed with the following conditions: major depressive disorder, panic disorder, insomnia, anger/irritability, uncongenial work environment, nightmare disorder, and post-traumatic stress disorder. Complainant also indicated that his depression, anxiety, irritability, and general psychological distress were directly related to his September 2014 on-the-job injury. We find, that the record supports that Complainant is a qualified individual with a disability. Our review of the record supports that the Agency articulated legitimate non-discriminatory reasons for its actions. Claims 1 and 3: Work Outside Work Restrictions Complainant testified that after his detail ended on December 19, 2019, his Postmaster forced him to work beyond his medical restrictions. However, Complainant’s supervisor (S1) testified that Complainant was asked to deliver mail after he returned from his detail, but Complainant refused, completed a form 3971, and thereafter, left the office. S1 explained that Complainant was therefore never required to work beyond his medical restrictions. Additionally, the Postmaster noted that Complainant has not worked at all and was on annual leave since his detail ended on December 19, 2019. The Postmaster further denied that Complainant was required to work outside of his medical restrictions in January 2020. The Postmaster explained that he instructed Complainant to deliver mail within his restrictions. The Postmaster even offered to provide Complainant training on the proper motion to avoid any further injury. However, the Postmaster explained that Complainant refused training and never did any work. Because Complainant refused training, the Postmaster informed Complainant that he would not be allowed to work, and in response, Complainant left the office. 2021000165 4 Claims 2 and 4: Paycheck Discrepancies The Postmaster testified that Complainant did not notify management that he was on leave until after his December 21, 2019 scheduled return to work. Consequently, the Postmaster explained that Complainant did not submit a leave request for days after December 21, 2019, until after the pay period had ended. The Postmaster clarified that a payment adjustment was issued after Complainant submitted the leave request. Regarding Complainant being sent home on December 19, 2019, the Postmaster explained that Complainant was already on leave that day and decided to come by the office on his personal time. The Postmaster also noted that Complainant submitted leave slips on January 6, 2020, after his leave ended on January 4, 2020, and after the pay period had closed. The Postmaster clarified that after receiving the leave request, an adjustment was made, and Complainant was paid for the time he was on annual leave. The Postmaster explained that Complainant was paid properly for leave taken from December 24, 2019 through January 4, 2020 and March 2 -5, 2020, once Complainant submitted the required leave requests. Regarding Complainant January 4, 2020 annual leave used, the Postmaster acknowledged that Complainant was on annual leave that day. However, the Postmaster noted that Complainant still came to work that to have a personal conversation. Nevertheless, the Postmaster explained that Complainant was charged the appropriate leave, or a pay adjustment was issued to compensate Complainant for the correct leave. We note that while the Postmaster and S1 were aware of Complainant’s medical restrictions, both management officials denied having any knowledge of Complainant’s genetic medical information. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s disability and age. Harassment To establish a claim of discriminatory environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2021000165 5 In other words, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his disabilities, genetic information or age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s additional claim of discriminatory harassment as evidenced by the events in claims 1 - 4 are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his disabilities, genetic information or age. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2021000165 6 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. The court has the sole discretion to grant or deny these types of requests. 2021000165 7 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 March 17, 2022 Date