Louis R.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 24, 20202019005557 (E.E.O.C. Sep. 24, 2020) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Louis R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019005557 Hearing No. 450-2017-00325X Agency No. 4G-752-0005-17 DECISION On August 31, 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 July 25, 2019 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Prestonwood Station located in Dallas, Texas. On November 16, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (Hispanic), and reprisal for prior protected EEO activity (prior EEO complaints and union grievances) 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. 2019005557 2 (1) on November 3, 2016, management issued Complainant a Letter of Decision- Removal, citing “Unacceptable Conduct”.2 Subsequently, Complainant added an allegation that the Agency discriminated against him based on disability (leg, foot, and head injuries) when: (2) on December 29, 2016 and continuing, management failed to provide Complainant accommodation within his medical restrictions so that he could return to work. The Agency accepted Complainant’s complaint for EEO investigation. During the EEO investigation, Complainant stated, on July 20, 2016, a Postal Supervisor (S1) assaulted him and caused him physical injuries (torn left Achilles tendon with broken heel bone, right knee ligament damage, and head trauma). He stated that management conducted a two-part investigative interview, but the involved managers are all outside of his protected race class. Complainant stated that the Prestonwood Station is predominantly African-American. Complainant stated that he just defended himself from S1, and the Agency challenged his injury claim with the Office of Workers’ Compensation Programs (OWCP) so he was unable to have needed surgeries in a timely manner. He stated also that the Agency did not offer him temporary or permanent limited duty so that he could return to work following his work-related injuries. Complainant stated that he could have “run the floor” at the station while wearing an orthopedic boot and walking with a cane. The Agency stated, on July 20, 2016, Complainant was in a physical altercation with a Customer Service Supervisor, S1, while on duty and on postal property (postal parking lot). The Agency stated that the altercation ended with S1 tripping backwards and Complainant straddling him. The Agency stated that it conducted an investigative interview and a polygraph showed that S1 might have thrown the first punch after arguing with Complainant about observing his route. The Agency stated that it issued S1 a notice of removal also.3 Agency management stated that it challenged Complainant’s OWCP claim because he was not injured performing his carrier duties, but rather actively fighting at work. (The Agency stated that Complainant could not work limited duty but could request light duty.) The Agency stated further that Complainant could not safely perform the essential functions of his position (which required continuous walking, bending and stooping, driving, climbing, and carrying more than ten pounds). The Agency noted that Complainant wore an orthopedic boot and walked with a cane, and was placed in leave status instead. 2 Through the negotiated grievance procedure, Complainant’s removal was reduced to a 14-day suspension to “remain live” in his record for two years. 3 The record shows, effective July 20, 2016, the Agency placed S1 in Emergency Placement in Off Duty Status and, on September 28, 2016, management proposed S1’s removal. 2019005557 3 Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Following a Notice of Intent to Issue Summary Judgment and over Complainant’s objections, on July 15, 2019, the assigned AJ issued a decision without a hearing in favor of the Agency. The AJ found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Subsequently, the Agency issued a final order adopting the AJ’s decision. The instant appeal from Complainant 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, 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”). 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, he 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. 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, non-discriminatory 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, 2019005557 4 EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on race, national origin, disability or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for removing Complainant from Agency employment. The Agency stated that it terminated Complainant’s employment for unacceptable conduct - a physical altercation with a supervisor, S1. The Agency stated that it conducted an investigative interview and removed Complainant and S1 from Agency employment for participating in the fight. We find that Complainant failed to show, by a preponderance of the evidence, that the articulated reasons are a pretext for discrimination. Reasonable Accommodation Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (October 17, 2002); see also, Abeijon v. Dep’t of Homeland Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). Assuming, without finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency failed to provide him reasonable accommodation. The record shows that the Agency reduced Complainant’s removal to a 14-day suspension and he returned to the Agency about December 29, 2016, and was sent home because he wore an orthopedic boot and walked with a cane. The record shows that the Agency afforded Complainant the use of leave during the time that he could not perform the essential functions of his position. Complainant was not in a supervisory position so placement in a management position, as Complainant asserted, was not required. See EEOC Enforcement Guidance on Reasonable Accommodation, question 24. Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability. EEOC Enforcement Guidance on Reasonable Accommodation, question 16. 2019005557 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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). 2019005557 6 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 September 24, 2020 Date Copy with citationCopy as parenthetical citation