[Redacted], Tyson A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jul 25, 2022

Appeal No. 2021001654 (E.E.O.C. Jul. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyson A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001654 Agency No. 4B-060-0048-19 DECISION On December 29, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 18, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Norwalk, Post Office in Norwalk, Connecticut. On April 25, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discriminatory harassment based on religion (Jewish), disability, age (DOB: 1962), and in reprisal for prior EEO activity 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. 2021001654 2 1. On February 25, 2019, his request for Reasonable Accommodation was denied; 2. On March 1, 2019, he was given a Pre-Disciplinary Interview (PDI); 3. On March 14, 2019, he received a Letter of Warning (LOW); 4. On March 15, 2019, he was passed over for overtime; 5. On May 10, 2019, he was given a 7-Day Suspension; 6. On May 1, 2019, he was denied union representation; 2 7. On May 13, 2019, he was given another PDI; and 8 On May 15, 2019, he was put on Emergency Placement. Following an investigation, Complainant requested a hearing before an Administrative Judge (AJ). However, the AJ dismissed the hearing request and remanded the matter to the Agency after Complainant failed to comply with a series of case deadlines.3 The Agency subsequently issued a final decision finding no discrimination or unlawful retaliation was established based on the evidence developed during the investigation. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation: Claim 1 Under the Commission’s regulations, an agency is required to make reasonable accommodations 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. Here, Complainant identified his disabilities as a condition in his left knee and Post-Traumatic Stress Disorder (PTSD). We will assume without deciding that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. 2 The record reflects that claim 6 was dismissed by the Agency prior to the investigation for failure to state a claim. We determine that this claim was properly dismissed when the Agency determined that it constituted a collateral attack on the grievance process, and we will not address this claim further. 3 On appeal, Complainant did not contest the AJ’s decision to dismiss his hearing and remand the matter to the for a decision. 2021001654 3 Complainant alleged that on February 25, 2019, he requested reasonable accommodation for his knee that involved having some packages removed from his delivery duties for that day. He claimed that the request was made because of difficulties with his knees climbing up and down the stairs. He said the request was denied. However, the Postmaster (PM1) (Christian, DOB: 1963) stated, and the evidence supported, that management took packages away from Complainant and lessened walking on his route. Furthermore, PM1 stated that management started providing Complainant assistance on his route. The record indicates that the accommodations provided were consistent with the medical documentation he submitted as part of his reasonable accommodation request. In sum, we determine that the Agency did not deny his accommodation requests. 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 a 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. 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, non-discriminatory 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). 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, as here, 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). Regarding claims 2 and 3, Complainant alleged that on March 1, 2019, he was given a PDI and that on March 14, 2019, he received a LOW. A fair reading of the evidence of record supports a finding that these actions were issued due to Complainant being irregular in attendance. Regarding claim 4, Complainant claimed that on March 15, 2019, he was passed over for overtime. PM2 explained that Complainant was passed over for overtime on March 15, 2019 because Complainant did not answer his phone. The SCS (Hispanic, DOB: 1979) stated that Complainant was probably not brought in for overtime due to the high amount of overtime he 2021001654 4 already had so another Overtime Desired List (OTDL) was brought in to keep all employees equal on this matter. Regarding claim 5, Complainant claimed that he was given a 7-Day Suspension. PM2 was responsible for issuing Complainant a 7-Day Suspension. PM2 stated that he had SCS conduct the Pre-Disciplinary Interview (PDI) regarding Complainant’s refusal to report to the office as instructed on May 1, 2019. PM2 stated that Complainant was issued a 7-Day Suspension on May 10, 2019 for failure to follow instructions when he asked Complainant to report to the Postmaster’s office to meet with him and Complainant refused stating he had a court order not to speak to management. The Agency determined that Complainant had violated Sections 665.13 “Discharge of Duties” and 665.15 “Obedience to Orders” of the Employee and Labor Relations Manual (ELM). The record reflects that no evidence of any alleged “court order” prohibiting such a meeting. Regarding claim 7, Complainant stated that on May 13, 2019, he was given a PDI. The Postmaster stated that Complainant walked away from the other side of the building and walked toward a co-worker’s truck and took an international package and walked away with the package in his hands. He stated that Complainant should not go into another co-worker’s truck and take any packages in that fashion. Regarding claim 8, Complainant alleged that on May 15, 2019, he was placed on Emergency Placement. The Postmaster explained that Complainant deliberately forcefully pushed his hamper into a co-worker’s (CW) hamper causing it to strike him in both knees. Moreover, Complainant filed a grievance regarding the Emergency Placement and the B team determined that management placed Complainant on Emergency Placement and the team found the grievance to be without merit. The record contains a copy of the May 15, 2019 Emergency Placement In Off-Duty Status. Therein, the Acting Supervisor, Customer Service stated that on May 15, 2019, Complainant deliberately forcefully pushed a hamper into a Carrier’s hamper causing it to strike him in both knees When questioned and informed of being placed on Emergency Placement the Acting Supervisor stated that “you proceeded to scream obscenities and make loud vulgar comments and accusations. When asked for your accountables and keys you unhooked your arrow key and threw them towards me, striking me in the face. You made a comment, ‘If you are coming for me, I will take everyone down.’” Complainant was then removed from the facility. Moreover, Complainant filed a grievance concerning the Emergency Off-status. The Dispute Resolution Team resolved this grievance finding that management had cause to take emergency action. We determine that the responsible Agency management officials articulated legitimate, non- discriminatory reasons for its actions, as delineated above, and that such reasons were not proven to be a pretext masking any discriminatory motivation. Moreover, to the extent that any or all of the claims are construed in the context of a harassment claim, any such claim is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency 2021001654 5 were motivated by the bases raised in the formal complaint. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation 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 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. 2021001654 6 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. 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 25, 2022 Date