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

Equal Employment Opportunity Commission

Mar 26, 2019

0120180261 (E.E.O.C. Mar. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Norberto G.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120180261

Hearing No. 430201700266X

Agency No. 4V712000416

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from an October 10, 2017 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 was employed by the Agency as
a Lead Mechanic/Lead Automotive Technician, PS-09, at the Agency’s Winston-Salem Vehicle
Maintenance Facility (“VMF”) in Winston-Salem, North Carolina.

On August 24, 2016, Complainant filed an EEO complaint alleging discrimination and
harassment by the Agency on the basis of disability 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.
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1. In January, May, and July 2015, he was harassed by a Level 10 mechanic and
management did not take any action;

2. On November 25, 2015, the Acting Supervisor (“S1”) (formerly the Level 10
mechanic) called him into the office and gave him a verbal warning;

3. In late 2015, on multiple unspecified dates, S1 harassed him about his work and
time off, and accused him of falsifying documents,

4. On May 4, 2016, S1 called him into the office and yelled at him about a repair he
had made, and then posted the work order for the repair on the office window for
his co-workers to view,

5. On May 16, 2016, S1 questioned him about the time it took for him to make a
repair, questioned his need to use the restroom first thing in the morning, and told
him that he needed to do an honest day's work for an honest day's pay,

6. On unspecified dates, he was bypassed for higher level details in the shop and was
not offered training for any higher-level positions, and,

7. On an unspecified date, S1 threatened to sue him if he (S1) did not receive a
promotion as a result of the instant EEO complaint.

After investigating Complainant’s complaint, the Agency provided him with a report of
investigation and notice of right to request a hearing before an Equal Employment Opportunity
Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely
requested a hearing but subsequently withdrew his request. On August 24, 2017, the assigned AJ
remanded the matter to the Agency for a FAD, pursuant to 29 C.F.R. § 1614.110(b).

The FAD concluded that Complainant failed to establish 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, 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”).

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Our regulations provide that the agency shall develop an impartial and appropriate factual record
upon which to make findings on the claims raised by the written complaint and define an
appropriate factual record as one that allows a reasonable fact finder to draw conclusions as to
whether discrimination occurred. See 29 C.F.R. § 1614.108(b). While the Agency has an
obligation under 29 C.F.R. § 1614.108(b) to develop an impartial and appropriate factual record,
the complainant can also cure defects in an investigation, after reviewing the report of
investigation, by notifying the agency (in writing) of any perceived deficiencies in the
investigation or by requesting a hearing before an AJ. See EEO MD-110, at Ch. 6, § XI and Ch.
7, § I.

Here, the ROI does not reflect all of the claims raised in Complainant’s formal complaint,
specifically with respect to retaliation and denial of a request for reasonable accommodation.
Additionally, the ROI insinuates that Complainant and his primary witness, the Union Steward,
failed to timely submit their responses to the Investigator’s affidavit request. Yet, the record
indicates that it provided Complainant’s Union Steward one day to reply. Additionally,
Complainant submitted the materials, including the Union Steward’s response and several other
witness statements by mail postmarked February 7, 2016. February 7, 2016 was the deadline to
submit based on the Agency’s two-week extension granted Complainant. Regardless, the ROI
was submitted on February 7, 2016, with Complainant’s documentation submitted separately,
and not subject to investigatory review. We do not find the Agency’s factual record and
investigation sufficient.

Retaliation

The Commission has a policy of considering reprisal claims with a broad view of coverage. See
Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission
policy, claimed retaliatory actions which can be challenged are not restricted to those which
affect a term or condition of employment. Rather, a complainant is protected from any
discrimination that is reasonably likely to deter protected activity. See Taylor v. United States
Postal Serv., EEOC Appeal No. 0120060151 (Jun. 6, 2007) (citing EEOC Compliance Manual
Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; Carroll.

We have previously found adverse actions taken in response to a request for reasonable
accommodations, or for asserting the right to reasonable accommodation when the Agency was
aware of the request states a claim of reprisal. See Keller v. United States Postal Serv. (agency
issued notice of removal two days after complainant requested additional floor mats as a
reasonable accommodation for her foot condition).

A fair reading of the record, even when limiting the review to the pre-complaint and formal
complaint documentation cited in the ROI, indicates that Complainant states a claim of unlawful
retaliation. The record contains documentation that Complainant met with S1 and Management
multiple times, beginning November 30, 2015, to address alleged harassment based on
Complainant’s medical restrictions (i.e. disability).
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Complainant’s formal complaint alleges escalation of the harassment following this protected
activity, and in reference to Complainant’s medical restrictions, such as restriction from working
overtime.

The ROI also overlooks a potential instance of per se retaliation, as Claim 7 literally states that
the alleged discriminatory act (threat to sue) was because of Complainant’s EEO activity
associated with the instant complaint. This incident was witnessed by Complainant’s Union
Steward, whose testimony is both in the record and was timely submitted by Complainant in the
form of a signed affidavit.

Denial of Reasonable Accommodation

EEOC Compliance Manual, Section 2, "Threshold Issues," p. 2-73, EEOC Notice 915.003 (July
21, 2005), provides that because an employer has an ongoing obligation to provide a reasonable
accommodation failure to provide such accommodation constitutes a violation each time the
employee needs it." See, e.g. Burris v. Dep’t of the Navy, EEOC Appeal No. 01200645531
(Jan. 10, 2007) (finding the agency’s denial of a complainant’s request for a position within his
medical restrictions, despite the ongoing nature of the complainant’s alleged need for an
accommodation, constituted a recurring violation).

We have long held that a complainant is not required to use the “magic words” when requesting
a reasonable accommodation. Instead, the employee or the employee's representative need only
inform the Agency that he or she needs an adjustment or change at work for a reason related to a
medical condition. See Triplett-Graham v. United States Postal Serv., EEOC Appeal No.
01A44720 (Feb. 24. 2006).

In his Formal Complaint, and in the counselor and investigative reports, Complainant recounts
how work orders for “2 tons,” referring to vehicles weighing 2 tons, were the least desirable and
routinely “skipped” by the mechanics in favor of work orders for other vehicles. Complainant
testified that S1 would not let him skip 2 ton work orders even when he had already “done his
fair share,” and when Complainant explained that extensive work on 2 tons aggregated his
service-connected back injury. We find Complainant essentially raised a claim of improper
denial of a request for reasonable accommodation. We also note Complainant’s allegations that
this was an “ongoing” issue. Despite the Agency’s acknowledgement and discussion of
Complainant’s allegation, it does not include a denial of reasonable accommodation analysis.

As the FAD does not include an analysis of retaliation for engaging in EEO activity, including
with respect to a reasonable accommodation, nor does it include an analysis of Complainant’s
allegation that he was denied a reasonable accommodation, this complaint must be remanded
back to the Agency for further investigation.

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CONCLUSION

Accordingly, the Agency’s FAD is VACATED, and we REMAND the matter for further
processing in accordance with the ORDER below:

ORDER
1. Within sixty (60) calendar days of the date on this Order, the Agency shall
conduct a supplemental investigation to address the retaliation and reasonable
accommodation claims discussed in this Decision. The Agency must issue a new
Report of Investigation (ROI) and, in addition to the retaliation and reasonable
accommodation claims, the new ROI must include Complainant and the Union
Steward’s affidavits, and Complainant’s other evidentiary statements, which he
submitted to the Agency in accordance within the February 7, 2016 deadline.
2. Upon receipt of the new ROI, Complainant shall be provided with fifteen (15)
calendar days to respond and submit additional evidence.
3. Within one-hundred and twenty (120) calendar days of the date on this Order,
the Agency must issue a new FAD based on the new ROI and Complainant’s
submissions, with appeal rights to this Commission.
4. Within thirty (30) calendar days of the issuance of the FAD, the Agency shall
submit a Compliance Report to this Commission, as provided in the section
“Implementation” section below. The Compliance Report shall include copy of
the new ROI and FAD.
In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this
remanded case in order to comply with the time frames contained in this Order. The Office of
Federal Operations will issue sanctions against agencies when it determines that agencies are not
making reasonable efforts to comply with a Commission order to investigate a complaint.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. 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

March 26, 2019
Date