Rick M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jan 7, 2020

2019000062 (E.E.O.C. Jan. 7, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rick M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2019000062 Hearing No. 531-2016-00060X Agency No. 1K-204-0015-14 DECISION On September 7, 2018, 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 August 9, 2018, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented herein are whether the AJ properly issued a decision without a hearing concluding Complainant did not establish that he was subjected to harassment and that he was denied a reasonable accommodation. 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. 2019000062 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Manager, Maintenance Operations, EAS-23, at the Agency’s Washington Network Distribution Center in Capitol Heights, Maryland. Complainant’s supervisors were the manager (Manager) (Male, African-American, not disabled, and no prior EEO activity against the Agency) and the Plant Manager (male, African-American, not disabled, and no prior EEO activity against the Agency). Complainant asserted that he testified in support of his wife’s EEO complaint against the Agency in March 2013. The record indicated that Complainant was accused of verbally abusing two craft employees after an encounter on February 27, 2014. The craft employees reported that Complainant yelled, “get the fuck off my floor, go hit the fucking clock, and go the fuck home!” They noted that they were not under Complainant’s supervision which made the event more inappropriate. The employees informed the Manager of the situation. The Manager engaged in an internal investigation into the claim of harassment by the craft employees. During this time, Complainant did not inform the Manager that the craft employees used the term “nigger” towards him. He only raised this with the Agency in October 2014 before the EEO Counselor. The Manager obtained witness statements regarding the February 27 event and placed Complainant on Emergency Placement pending the investigation beginning March 1, 2014. On March 24, 2014, the Manager met with Complainant regarding the incident. He arranged to have Agency police officers present because the Manager stated that he was afraid of Complainant. The Agency placed Complainant’s photo in Agency buildings and noted that he was not permitted to enter the facilities without an escort. On May 9, 2014, the Manager notified Complainant that he could return to duty. However, Complainant stated that he was diagnosed with depression, anxiety, and job-related stress on April 29, 2014. Complainant asked the Manager to place him on paid administrative leave until he could be provided with work within his medical restrictions. On June 5, 2014, Complainant sent a letter to the Plant Manager requesting a transfer away from the Manager. On June 23, 2014, Complainant gave the Agency his medical documentation which stated that Complainant could not work for or have contact with the Manager. Complainant met with the District Reasonable Accommodation Committee (DRAC) seeking a reassignment on June 23, 2014 and again on September 19, 2014. Following the September meeting, the DRAC provided Complainant with a list of 14 posted positions for which Complainant could apply. Complainant applied but was not accepted for any of the positions. Complainant contacted the EEO Counselor alleging discrimination. On December 22, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (mental), and in reprisal for prior protected EEO activity arising under Title VII when: 1. Since on or about March 19, 2014, Complainant was removed from his managerial status and duties; 2019000062 3 2. Since on or about March 19, 2014, Complainant was denied reasonable accommodation; 3. On unspecified dates prior to March 19, 2014, Complainant was denied positions; instructed to manually use the time clock; excluded from meetings; placed under surveillance; locked out of his office; accused of sexual harassment and using profane language. The Agency dismissed claims 2 and 3. The Agency accepted claim 1 for investigation. During the investigation, on February 13, 2015, Complainant requested to amend his complaint alleging discrimination based on race, sex, disability, and reprisal when: 4. Since on or about September 16, 2014, Complainant was denied reasonable accommodation. The Agency accepted claim 4 as an amendment to the complaint. Further, on March 28, 2015, Complainant alleged discrimination based on race, sex, disability, and reprisal when: 5. On February 23, 2015, Complainant was denied unemployment benefits. The Agency dismissed claim 5. Therefore, the Agency investigated claims 1 and 4. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a motion for summary judgment on June 17, 2016. Complainant responded to the Agency’s motion on July 22, 2016. Following the motions, the AJ assigned to the case issued a decision without a hearing on July 25, 2018. The AJ found that there was no genuine issue of material facts. As to Complainant’s claim of harassment, the AJ noted that Complainant asserted he was subjected to harassment when he was accused of verbally harassing two craft employees on February 27, 2014, met with the Manager and Agency police officers, had his pictures posted in facilities limiting his access, and was placed on emergency placement pending the investigation. The AJ found that these events were not sufficient enough to create a hostile work environment, noting that the Manager was responding to a claim of harassment by the craft employees. In addition, the AJ found that Complainant did not show that he informed the Agency of the use of the racial slur at the time of the Manager’s investigation into the February 27th event. Therefore, the AJ concluded that Complainant did not show that he was subjected to harassment as alleged. As for Complainant’s claim of denial of reasonable accommodation, the AJ determined that Complainant sought a reassignment away from the Manager due to his medical condition. Assuming that Complainant established that he was a qualified individual with a disability, the AJ noted that the requested accommodation was for a change in management. 2019000062 4 Citing Commission precedent and policy guidance, the AJ determined that such a reassignment was not considered a reasonable accommodation. Accordingly, the AJ held that Complainant did not show that the Agency’s denial of his request constituted a violation of the Rehabilitation Act. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant appealed, asserting that there were material facts in dispute. Complainant argued that the Manager’s investigation was not adequate nor reasonable. He claimed that he did not yell at the craft employees and that the employees used a racial slur against him. Further, Complainant stated that he established he had been subjected to harassment and the AJ erred when he determined that Complainant did not. Complainant also asserted that the AJ erred in placing the burden on Complainant to establish undue hardship with regards to his claim of denial of reasonable accommodation. In addition, Complainant argued that the Agency failed to engage in the interactive process. As such, Complainant asked that the Commission remand the matter back for a hearing or find in his favor. The Agency asked that the Commission affirm its final action implementing the AJ’s decision. ANALYSIS AND FINDINGS Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. 2019000062 5 To successfully oppose a decision without a hearing, Complainant must identify material facts that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant alleged that the Agency failed to properly obtain evidence from other witnesses to the February 27th event. In addition, Complainant argued that the craft employees were the ones who used a racial epithet. However, the Agency conducted the investigation and placed Complainant on emergency placement based on the report by the craft employees. Complainant did not engage in the internal investigation and did not inform the Agency of the use of the racial slur until October 2014. As such, we find that the Complainant has not shown that the alleged disputes of fact were material. Ultimately, the AJ correctly determined that there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Harassment It is well-settled that harassment based on an individual’s sex, race, disability, and/or prior protected EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes and his prior EEO activity; (3) the harassment complained of was based on race, sex, disability, and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Complainant alleged that he was subjected to harassment when he was accused of verbally harassing two craft employees on February 27, 2014, met with the Manager who was accompanied by Agency police officer, had his pictures posted in facilities limiting his access, and was placed on emergency placement pending the investigation. Upon review of the record, we find that the Agency showed that these events occurred following the reports by the craft employees who complained that Complainant subjected them to a hostile work environment when he alleged yelled at and sent them out of the workspace on February 27, 2014. Complainant asserted that the craft employees used a racial slur against him. However, he did not inform the Agency of the use of the racial slur until October 2014. Further, Complainant did not provide any other evidence to suggest that the actions taken by the Agency to investigate a claim of harassment levied against Complainant were done because of his protected bases. As such, we conclude that Complainant has not shown that he was subjected to unlawful harassment based on his race, sex, disability, and/or prior EEO activity. 2019000062 6 Denial of Reasonable Accommodation In order to establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. An Agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 29 C.F.R. § 1630.9. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). The term “reasonable accommodation” means modifications or adjustments to the work environment, or to the manner or circumstances under which the position held is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position. 29 C.F.R. § 1630.2(o)(1). When an individual decides to request accommodation, he must let the agency know that he needs an adjustment or change at work for a reason related to his medical condition. A health professional may request a reasonable accommodation on behalf of an individual with a disability. It is a reasonable accommodation to modify a workplace policy when necessitated by an individual’s disability-related limitations, absent undue hardship. The Commission’s guidance states that, in most circumstances, an employer does not need to change a person’s supervisor as a form of reasonable accommodation. Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance), (Oct. 17, 2002), Question 33. See Mitchell v. Dep’t of Labor, EEOC Appeal No. 0120100555 (Feb. 9, 2012), see also, Cangemi v. Dep’t of the Navy, EEOC Appeal Nos. 01A42450 and 01A453177 (April. 7, 2006) (holding that an employer does not have to change a person’s supervisor as a form of reasonable accommodation, although nothing prohibits an employer from doing so, citing Enforcement Guidance). As such, we find that the Agency was not obligated to provide Complainant with a new supervisor as a reasonable accommodation. Accordingly, we determine that the AJ correctly held that Complainant did not establish that the Agency violated the Rehabilitation Act. 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 action implementing the AJ’s decision without a hearing finding no discrimination. 2019000062 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2019000062 8 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 January 7, 2020 Date