[Redacted], Thurman L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020002276 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thurman L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020002276 Agency No. 1J494001819 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a December 23, 2019 Final Agency Decision (“FAD”) concerning an 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 worked as a Labor Custodian, Level 4, at the Agency’s Grand Rapids Processing and Distribution Facility ("P&DF") located in Grand Rapids, Michigan, with Annexes in Kentwood Michigan. 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. 2020002276 2 On May 28, 2019, Complainant filed a Formal EEO Complaint alleging that he had been subjected to a hostile work environment and discrimination by the Agency on the bases of disability and reprisal for prior protected activity when: 1. On February 9 and 19, 2019, he was denied a Change of Schedule, 2. On February 19, 2019, he was charged Absent Without Leave (“AWOL”), 3. On or around March 18, 2019, he was subjected to an investigative interview,2 and 4. On March 23, 2019, he was issued a Letter of Warning (“LOW”).3 At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of his right to request a FAD or a hearing before an EEOC 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). Complainant was assigned to Tour 3 (3:30 pm to 11:00 pm). His first level supervisor (“S1”) was the Supervisor Maintenance Operations, and his second level supervisor (“S2”) was the Manager, Maintenance Operations. S1 and S2 were aware that throughout the relevant time frame, Complainant had two open EEO complaints with the Agency, which were both pending a hearing before an AJ (“Complaint 1” and “Complaint 2”).4 In December 2018, Complainant provided S1 with multiple PS Forms 1110 (Request for Official EEO Time for EEO Processing) to prepare for his prehearing. S1 initially approved Complainant’s requests. However, S2 denied Complainant’s PS Forms 1110 requesting two hours of official time daily from December 18 through 22, 2018, with the stated reason of “deposition.” S2’s stated reason for the denial was “ten percent cap exceeded” noting that Complainant was already granted 16.66 hours of EEO Official Time in December 2018. 2 Complainant alleges an additional investigative interview on April 11, 2019 but further detail is not provided in the record. 3 Agency’s June 19, 2019 Acceptance Letter properly specified that Complainant’s additional allegations related to denial of official time were “referred to the agency official responsible for the quality of complaints processing in accordance with the EEOC’s MD-110, at 5-28. An inquiry will be conducted, and you will be issued a separate document concerning this allegation.” Accordingly, Complainant’s allegations related to denial of official time will not be addressed in this appellate decision. 4 EEOC Hearing Nos. 471201700008X, 471201700038X (Aug. 28, 2020) (Agency Nos. 1J494002015, 1J494000217, consolidated decision for administrative convenience, summary judgment granted in favor of the Agency). 2020002276 3 Complainant states that after the December 18, 2018 denial, he requested leave to work on his EEO complaints and did not take any additional official time until April 2, 2019. On January 31, 2019, at 1:08 pm, Complainant emailed the AJ assigned to Complaints 1 and 2, stating, “my pre-hearing was scheduled today…[w]ill you please let me know when you want me to forward information, witness lists, exhibits, settlement, and questions I have [to] bring forward and discuss before [the] hearings.” At 1:38 pm, the AJ sent an email to the parties stating: “Today’s conference is cancelled. It will be rescheduled in the near future.” On February 1, 2019, Complainant submitted a PS Form 3971 (Request for or Notification of Absence) for 72 hours of LWOP from February 5 through 18, 2019. S1 was not authorized to grant this amount of LWOP, so she consulted S2. On S2’s advice, S1 denied Complainant’s request, citing “needs of service.” On or about February 5, 2019, Complainant submitted two PS Forms 3189 (Request for Temporary Schedule Change for Personal Convenience) for February 9 through 15, 2019 and for February 23, 2019 through March 1, 2019. Both forms requested to work the same days, but from 7:00 am to 3:00 pm instead of his Tour 3 schedule. S1 denied both requests on February 18, 2019, citing “not enough personnel” and “needs of service.” On February 14, 2019, Complainant called S2 four times regarding the denied leave and schedule change requests. Complainant recounts that S2 said he would call back and never did. Complainant also called an Acting Manager, Maintenance Operations four times, with no response. Complainant also contends that S2 never responded when he replied to the denial of Official time in December and requested for a waiver of the 10% Cap due to extraordinary circumstances. Namely, the AJ’s email notice that the prehearing conference would be held in the “near future.” It does not appear that Complainant followed up with the AJ for clarification on the timeline, or to request an extension to prepare. On February 19, 2019, Complainant called the Agency’s Interactive Voice Recorder (“IVR”) system to request 40 hours of LWOP due to a “personal legal emergency.” As the IVR system did not provide this option, Complainant stated “other” as the reason for his emergency absence, which the system interpreted as “auto,” and categorized as a transportation emergency. On or about February 26, 2019, S1 met with Complainant for an informal discussion regarding his unscheduled leave from February 19 through 23, 2019. She provided him with a PS Form 3971 for emergency leave due to “transportation problems” based on the IVR system record. Complainant refused to sign, explaining that his emergency was not related to transportation problems. S1 provided Complainant until March 1, 2019 to provide documentation of his incapacitation to excuse his unscheduled leave between February 19 through 23, 2019. On February 27, 2019, Complainant submitted a new PS Form 3971 for February 19 through 23, 2019, and under remarks, wrote “to prepare for pre-hearing and hearing after receiving email from administrative judge PRE-HEARING WILL BE SOON” (emphasis original). 2020002276 4 He also provided her with a copy of the AJ’s January 31, 2019 email. S1 denied Complainant’s PS Form 3971 and charged him with AWOL from February 19 through 23, 2019. On February 28, 2019, Complainant submitted a Form 3971 requesting annual leave from March 5, 2019 through March 9, 2019. Under remarks, Complainant wrote “to prepare for pre-hearing and hearing for two EEOC hearings.” S1 approved Complainant’s request. On March 19, 2019, S1 held a pre-disciplinary investigative interview with Complainant, based on his attendance, as he failed to provide proper documentation to support his transportation- related emergency leave from February 19 through 23, 2019. Complainant attempted to clarify that his absence was due to a personal legal emergency, not transportation. According to Complainant, the Union Steward confirmed to S1 that similar errors by the IVR system had occurred for other employees and S2 later acted surprised that S1 did not simply drop the matter upon learning of the error. Complainant further alleges that S1 refused to accept the AJ’s January 31, 2019 email as proper documentation for an absence based on a legal emergency. On March 23, 2019, S1 issued Complainant a Letter of Warning (“LOW”) for “failure to follow instructions resulting in AWOL.”5 Specifically, Complainant failed to furnish evidence supporting emergency leave based on transportation problems (per the IVR system record) from February 19 through 23, 2019. The LOW notes that Complainant had been denied LWOP and temporary schedule changes for the same time frame as the emergency leave. The LOW further noted that during the March 19, 2019 investigative interview, Complainant responded that he “did not recall” and “no” when asked about his request for emergency leave due to transportation problems. The LOW acknowledged that Complainant offered documentation to support his emergency leave, but found it “unacceptable” for excusing 40 hours LWOP. The LOW did not offer further explanation, nor did it acknowledge Complainant’s stated reason of “personal legal emergency” and explanation that “transportation” as a reason for the emergency leave was the result of an IVR system error. The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 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”) 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 5 On appeal, Complainant states that the LOW was expunged from his record on September 23, 2019 as it was based on an IVR system error. 2020002276 5 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Hearing Request EEOC regulations provide that under certain circumstances, an agency or the Commission shall extend the time limits for EEO processes. These circumstances include delays resulting from instances where, despite due diligence a complainant was prevented from meeting a deadline by circumstances beyond their control or for other reasons considered sufficient by the agency or the Commission. See 29 C.F.R. § 1614.604(c). In cases involving physical or mental health difficulties, an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Dos Santos v. Dep’t of Veterans Affairs, EEOC Appeal No. 01992476 (Jan. 3, 2001) citing Davis v. United States Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998). On appeal, Complainant acknowledges that he received the ROI on October 8, 2019, but asks the Commission to void the FAD and remand his complaint for a hearing before an AJ, explaining that extenuating circumstances caused him to miss the deadline to file a hearing request. Specifically, Complainant states that throughout the 30-day window to submit his request, he was consumed with obtaining and responding to interrogatories and document requests for Complaints 1 and 2, which were pending before an AJ. Also, during this time his PTSD symptoms were exacerbated because, as a pro se complainant (assisted by a non-attorney representative), he felt overwhelmed by the EEO process. However, Complainant offers no supporting evidence that he was physically unable to submit a hearing request. Rather, his concurrent EEO activity related to Complaints 1 and 2 indicates that he was capable of completing and submitting a hearing request within 30 days of receiving the ROI. Therefore, Complainant’s request is denied. Disparate Treatment As an initial matter, the Agency’s June 19, 2019 Acceptance Letter properly dismissed Claims 1 and 2 as disparate treatment claims, pursuant to C.F.R. §1614.107(a)(2). However, these claims will be considered in the harassment analysis. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Therefore, we will only address claims 3 and 4 under the disparate treatment analysis. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 2020002276 6 The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). A complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 802 (1973)). Specifically, in reprisal, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) the complainant engaged in protected activity; (2) the agency was aware of the protected activity, (3) subsequently, complainant was subjected to adverse treatment by the agency, and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Under the first prong of the prima facie analysis, “protected activity” refers to either participation in the EEO process or acting in a reasonable, good faith manner to oppose discriminatory practices in violation of EEO statutes. See EEOC Compliance Manual, Section 2, B.11, (May 12, 2000) (EEOC Directive No. 915.003), citing EEOC v. Romeo Community Sch., 976 F.2d 985, 989-990 (6th Cir. 1992), Contra Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993), cert. denied, 511 U.S. 1052 (1994). We note that participation includes filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute, regardless of the validity or reasonableness of the original allegation of discrimination. Id. Here, Complainant engaged in “protected activity” when he requested official time, LWOP and temporary schedule changes where his stated reason was to prepare Complaints 1 and 2 for a pre-hearing before an EEOC AJ. The Agency erred in determining that Complainant was unable to establish prong 4 of the prima facie case for reprisal, as it failed to identify Complainant’s efforts to prepare for a prehearing before an AJ as “protected activity.” Instead, the Agency reasoned, “although [Complaint 2] is still pending, there is no evidence that [S1 or S2] were named and/or involved in that complaint.” The Agency also noted that a causal connection could not exist based on the lack of temporal proximity between the EEO activity related to filing Complainant’s pending EEO complaints, and the alleged retaliatory actions of the instant complaint. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120072556 (Feb. 26, 2009) (temporal proximity between an employer's knowledge of protected activity and an adverse action is sufficient evidence of causality to establish a prima facie case of reprisal if such temporal proximity is "very close"). The alleged discriminatory acts in the instant complaint occurred within a close temporal proximity to Complainant contacting S2 and the Acting Manager regarding his denied Official Time and requests for LWOP in order to work on his EEO complaints. 2020002276 7 S1 held the March 19, 2019 Investigative Interview, issued the LOW, and charged Complainant with AWOL within close proximity to Complainant’s February 27, 2019 PS Form 3971 attributing his 40 hours of emergency leave to his need to prepare for time sensitive EEO matters, followed by Complainant’s February 28, 2019 PS Form 3971 for 40 additional hours of LWOP to work on EEO matters, resulting in approved LWOP from March 5, 2019 through March 9, 2019. While S1 was not involved in the allegations raised in Complaints 1 and 2, the facts demonstrate a nexus between her alleged retaliatory acts and Complainant’s protected activity related to the pre-hearing conference for Complaints 1 and 2. We find that complainant met the requirements under prong four to successfully establish a prima facie case for reprisal. We will assume for the sake of argument that Complainant established a prima facie case for discrimination on the basis of disability as well. The Agency’s legitimate nondiscriminatory reason for conducting an Investigative Interview (Claim 3), and issuing a LOW (Claim 4), arises from Complainant taking 40 hours of emergency leave from February 19 through 23, 2019 after his previous requests for leave during this time frame were denied, and he failed to provide sufficient documentation to support that his absence was due to emergency. The Agency identified established internal policies supporting its response to Complainant’s emergency leave. With respect to a request for LWOP arising from an emergency, ELM 512.42 states that advance notice is not required, but “the employee must notify appropriate postal authorities of the emergency and the expected duration of the absence as soon as possible.” Where, as here, the emergency absence is not covered under the Family and Medical Leave Act (“FMLA”), “the employee must submit a PS Form 3971 and applicable medical or other certification upon returning to duty and explain the reason for the emergency to his or her supervisor.” The supervisor can approve or disapprove this request. If the request is disapproved, the supervisor has discretion to record the absence as LWOP or AWOL, so long as they provide a written explanation. Under ELM 665.42, if an employee is “absent without permission or fails to provide satisfactory evidence that an actual emergency existed” they may be marked “AWOL” and “the absence may be the basis for disciplinary action.” While Complainant disagrees with S1’s determination that the AJ’s January 31, 2019 email was “unacceptable” documentation to justify 40 hours of LWOP, he has not shown that S1 acted unreasonably in terms of business judgment. S1 already provided Complainant written disapprovals for this time frame for legitimate nondiscriminatory reasons. Complainant was one of four Tour 3 Custodians, and one of his coworkers was already on leave during the relevant time period. On multiple days during that time, only two Custodians were listed on the schedule. S1 granted Complainant’s request for the first week of March 2019, where the three other Custodians were all on the schedule. 2020002276 8 Further, S1’s rejection of the AJ’s January 31, 2019 email is not sufficient to establish pretext, as it objectively does not indicate an emergency. The urgency and time constraints Complainant conveys are simply not reflected in the AJ’s January 31, 2019 email, which only references a follow up email and does not provide any concrete dates or deadlines. Theoretically, Complainant should not require any additional time, as he was aware that all preparations and submissions were due when the pre-hearing conference was first scheduled, on January 31, 2019. To the extent Complainant believes he was entitled to two weeks off at short notice because his reason involved EEO activity, he was aware of the process for requesting Official Time, and the proper avenues for challenging the Agency’s assessment of whether the amount of time he requested for EEO activity was “reasonable.” Harassment/Hostile Work Environment To prove his harassment claim, 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 his prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). We have long held that managerial decisions and personnel actions that are disadvantageous to the employee do not automatically equate to harassment creating a hostile work environment. See Arnold v. United States Postal Serv., EEOC Appeal No. 01A24022, (Oct. 9, 2003); DiFruscio v. Soc. Sec. Admin., EEOC Appeal No. 01982006 (Sept. 13, 2000) (Instructions and admonishments do not rise to the level of discriminatory harassment.) Moreover, it bears noting that an agency is not required to refrain from non-discriminatory personnel actions it would otherwise take simply because the employee has engaged in EEO activity. See, e.g., Sotomayer v. Dep’t of the Army, EEOC Appeal No. 01A43440 (May 17, 2006) (finding complainant failed to prove discrimination as alleged despite the “suspect timing” of Complainant’s March 10, 2002 termination for unsatisfactory conduct after Complainant contacted the EEO Office alleging harassment on February 27, 2002) citing Carter v. Dep’t of Education, EEOC Appeal No. 01842314 (Aug. 25, 1986). Claims 4 and 5 will not be considered in our harassment analysis because the Agency successfully demonstrated legitimate nondiscriminatory reasons for its actions in these claims. As for Claims 1 and 2, in light of the Agency’s policies and operational needs established in the record, we do not find the Agency’s actions retaliatory or discriminatory. New Claims Raised on Appeal On appeal, Complainant raises additional claims of harassment based on reprisal, as well as denial of a reasonable accommodation request. 2020002276 9 Specifically, Complainant alleges that because of his protected EEO activity, S1 “stalked” him, subjected him to intimidation, bullying, harassment and retaliation, exacerbating his PTSD. On March 29, 2019, Complainant submitted a PS Form 3189 for each week in April and May 2019, requesting a temporary schedule change, but S1 disapproved them, citing “needs of service” on all seven requests. He also states that he faxed his medical documentation and attempted to obtain a reasonable accommodation on May 31, 2019 but his calls were never returned. As these claims were not included in Complainant’s formal complaint, they cannot be adjudicated in this decision. If Complainant wishes to pursue these new allegations in an EEO complaint, then he must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). 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. 2020002276 10 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. 2020002276 11 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 16, 2021 Date