[Redacted], Adell W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Feb 22, 2023

Appeal No. 2022001323 (E.E.O.C. Feb. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adell W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001323 Agency No. 4K200008821 DECISION Complainant appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a December 15, 2021 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 Full Time City Carrier, Q-01, for the Agency’s Southwest Station in Washington, D.C. Complaint 1 - Agency No. 4K200007820 The record shows that prior to the complaint that was addressed in the Agency’s final decision currently on appeal, Complainant had previously sought EEO counseling and later filed an EEO complaint, identified as Agency No. 4K200007820 (“Complaint 1”), which is relevant to this appeal. Complaint 1 alleged that on March 27, 2019, Complainant sustained an on-the-job injury. 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. 2022001323 2 Her case was accepted by the Office of Workers’ Compensation Programs (“OWCP”) at the Department of Labor. It appears from the record that afterwards, Complainant took a lengthy leave without pay (“LWOP”), returning to work in January 2020. On February 5, 2020, Complainant contacted an EEO counselor alleging that her supervisor and other management officials subjected her to discrimination, including a hostile work environment and denial of reasonable accommodation, on the basis of disability and in reprisal for her prior protected activity. The allegations included ongoing harassment, denial of reasonable accommodation, the supervisor’s failure to return Complainant’s leave slips, and the supervisor improperly coding Complainant as Absent-Without-Leave (“AWOL”) and Leave- Without-Pay (“LWOP”) instead of on OWCP approved leave. On February 13, 2020, Complainant received a PS Form 2499 (Offer of Modified Assignment) which she signed (accompanied by the phrase “under protest”). Complainant alleges in the record that this offer was an act of unlawful retaliation because “out of the blue” it changed her official start time from 8:00 am to 10:00 am, and Management was aware that this would interfere with her childcare responsibilities. It appears Complainant missed additional work due to childcare responsibilities when schools were closed due to the COVID-19 pandemic. In April 2020, Complainant claims that she was “pulled out of work” at the recommendation of her medical provider. Complainant alleged her mental disabilities were exacerbated based on stress from the supervisor and manager not signing her CA-7 leave slips. Complainant states that she was forced to use her Annual Leave because the supervisor failed to properly record her OWCP leave. On May 7, 2020, Complainant and the Agency entered into a Negotiated Settlement Agreement to resolve Complaint 1. The supervisor was specifically named and signed the settlement agreement.2 Among other things, the supervisor agreed to sign and submit Complainant’s CA-7 forms and properly code Complainant’s leave. In accordance with her medical provider’s recommendation, Complainant returned to work in or around June 2020. Complaint 2 - Agency No. 4K200008821 On March 21, 2021, Complainant filed an EEO complaint (“Complaint 2”) alleging that she was subjected to discrimination, including hostile work environment harassment, on the bases of disability and reprisal for prior protected EEO activity.3 The Agency, in its FAD, framed the claims in Complaint 2 as follows: 2 Contradicting Supervisor’s testimony that she was unaware of and uninvolved with Complainant’s EEO activity. 3 Complainant alleges, “Management has been retaliating against me since I’ve filed my very first EEO in 2010-2011,” and lists Agency Case Nos. 4K200002013, 4K200003115, 4K200004419, 4K200006816, 4K200010214, and 4K2000l5814. The Agency’s April 12, 2021 2022001323 3 1. From June 9, 2020, and ongoing her leave was coded incorrectly resulting in loss of her health benefits. 2. From November 28, 2020, to May 31, 2021, she was not provided work. 3. From January 30, 2021, through March 12, 2021, she was not paid. 4. Since 2007, she was not eligible for Family & Medical Leave Act (FMLA) leave when Management coded her leave incorrectly. 5. She has not been provided with reasonable accommodation of a dolly requested for her medical restrictions. 6. On January 5, February 25 and 27, 2021, Management belittled her in emails. 7. On January 23, 2021, and after, Management threatened to fire her. 8. On January 5, February 25, and March 2, 2021, Management did not return her leave slips. The Agency accepted the complaint and conducted an investigation which showed that on June 9, 2020, Complainant sustained another on-the-job injury when she fell while being chased by a dog. Complainant sought traumatic injury continuation of pay (“COP”) through OWCP. However, the supervisor4 failed to immediately report Complainant’s on-the-job injury to the Agency’s Human Resources Office (“HR”), as required. It was not until mid-July 2020, when the Union Steward got involved, and filled out the paperwork with the supervisor, that Complainant’s COP request was submitted. On June 10, 2020, Complainant returned to work and the supervisor told her to deliver her route. Complainant explained that she was unable to do so due to her injuries and she left early. Complainant subsequently submitted a CA-17 Duty Status Report dated June 10, 2020, which specified Complainant’s condition as right shoulder pain, low back pain, wrist pain and knee pain. The CA-17 also stated that Complainant could return to work on June 11, 2020, with the following restrictions: no lifting/carrying, climbing, kneeling, bending/stooping, twisting, pulling/pushing or driving a vehicle; standing, walking, reaching above the shoulders 2 hours intermittently; and sitting, simple grasping, fine manipulation 8 hours continuously. Letter of Acceptance for the instant complaint acknowledged Complainant’s reference to Agency Case Nos. 4K200014217 (accepted as background information for the instant complaint) and 4K200007820 (consolidated with the instant complaint on July 20, 2021). 4 This was the same supervisor as the one alleged to have been responsible for discrimination in Complaint 1. 2022001323 4 When Complainant attempted to return to work again, the supervisor stated that there was no available work within Complainant’s medical restrictions. On July 30, 2020, OWCP notified Complainant that her COP claim for her June 9, 2020 injury had been accepted (“claim for traumatic injury: contusions on right and left knees, sprained right wrist, strain, facia and tendon at shoulder and upper arm level, right arm”). However, instead of COP or OWCP leave, the supervisor had been coding Complainant’s absence as LWOP or annual leave. On December 4, 2020, the HR Shared Service Center notified Complainant that her health benefits were terminated effective July 31, 2020, due to failure to remain in a pay and duty status for eight consecutive pay periods after returning from 365-day LWOP. Complainant later cited this as an example of the supervisor’s failure to comply with the May 7, 2020 settlement agreement. She also claims that she was prevented from returning to work after her injury, beginning November 28, 2020 and ongoing, because the supervisor informed her that there was no available work within Complainant’s medical restrictions. On January 5 and February 23, 2021, having yet to receive a job offer within her medical restrictions, Complainant included the following statement on her PS Form 3971 (Request or Notification of Absence) for her OWCP-related absence: “IOD-Management refuses to provide me with a job offer or 8 hours of work within my restrictions.” Complainant also submitted a request for compensation from January 30, 2021 through March 12, 2021 to OWCP. Along with her February 23, 2021 CA-17 Duty Status Report, Complainant provided a medical report from a physician regarding her June 9, 2020, listing her diagnosis and conditions. On February 25, 2021, an HR Specialist stated to the supervisor, “I have spoken to [Complainant] and informed her to report to work 10am on March 1, 2021.” However, Complainant responded that this did not constitute a written job offer and it was outside her work schedule. She also stated, “I’ve been calling about a job offer for months.” On February 27, 2021, the supervisor sent an email to other postal facilities in the area with the subject “Looking for work limited duty employee [Complainant’s full name].” The body of the email stated, “Employee is capable for doing work within her restrictions: 1 hour of climbing 2 hours of walk 2 hours of standing 3 hours of driving 6 hours of sitting 6 hours of lifting/ carrying.” Complainant notes that this is inconsistent with her medical restrictions. Regardless, Supervisor testified that she did not receive a response from the other facilities. The record is devoid of evidence that the supervisor made any other efforts before or since to locate work for Complainant that was within her medical restrictions. On March 4, 2021, the supervisor sent an email to Complainant and Management that stated: “the entire time you have been gone you were being coded for OWCP . . . [Manager] gave you an offer letter February 13, 2020.” 2022001323 5 On March 26, 2021, OWCP notified Complainant and the Agency that it approved Complainant’s request for OWCP compensation for the period of January 30 through March 12 because “no written [light or limited duty job] offer had been made [to Complainant]. [emphasis added].” In addition, OWCP instructed the Agency to provide Complainant with a job offer based on the work restrictions outlined in the February 23, 2021 medical report, which described Complainant’s June 9, 2020 on-the-job injury. On June 1, 2021, Complainant returned to work at the Southwest Station. On June 25, 2021, Complainant received a PS Form 2499 Offer of Modified Assignment (Limited Duty), for the modified position of Customer Service Agent, working from 8:00am to 4:30pm with Saturday and Sunday off. The physical requirements of the position were standing two hours, sitting six hours and fine manipulation eight hours. Complainant accepted the position. Consolidation of Complaint 1 (Agency Case Nos. 4K200007820) with Complaint 2 (Agency Case No. 4K200008821) Meanwhile, on February 16, 2021, Complainant filed notice with the Agency’s EEO Office that the Agency was in breach of the May 7, 2020 settlement agreement, which had resolved Complaint 1. Among other things, Complainant alleged that the supervisor failed to correctly code the absences she said she would code, and continued to improperly record Complainant’s absences, including in June and July 2020 following her June 9, 2020 on-the-job injury. On April 28, 2021, after unsuccessful attempts to contact the supervisor, the Agency issued a letter of determination stating, “Agency did not provide evidence of compliance with terms of the agreement, therefore [the May 7, 2020 settlement agreement is] voided and case re-opened.”5 On May 12, 2021, the Agency issued Complainant a Notice of Right to File her formal EEO complaint for Complaint 1 (4K200007820). It appears, Complainant timely filed a formal complaint for 4K200007820 on May 27, 2021. According to Agency records, on July 20, 2021, Complaint 1 was “consolidated with 4K200008821 [Complaint 2],” and “claims accepted.” However, the record is devoid of evidence that claims from Complaint 1 were actually incorporated into the EEO investigation of Complaint 2. Final Agency Decision At the conclusion of its EEO investigation into Complaint 2, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request either 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 FAD pursuant to 29 C.F.R. § 1614.110(b). 5 This is based on the case notes for Complainant’s complaint record, the letter is not in the record, and there is no indication that Complainant was provided with an opportunity to request specific performance. 2022001323 6 The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination or unlawful retaliation as alleged with regard to the claims raised in Complaint 2. The Agency’s decision does not address the claims raised in Complaint 1. 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 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). As detailed above, On April 28, 2021, the Agency issued a letter of determination on Complainant claim of breach of the May 7, 2020 settlement agreement of Complaint which voided that agreement and re-opened the matter. On May 27, 2021, pursuant to the Agency- issued Notice of Right to File, Complainant filed a formal complaint for Complaint 1 (4K200007820). According to Agency records, on July 20, 2021, Complaint 1 was “consolidated with 4K200008821 [Complaint 2],” and “claims accepted.” However, the record is devoid of evidence that claims from Complaint 1 were actually incorporated into the EEO investigation of Complaint 2. In addition, in the final decision issued by the Agency on Complaint 2, which is currently on appeal, the Agency failed to address the issues raised in Complaint 1. Moreover, the record shows that the claims in both complaints are intertwined in a manner that supports consolidated processing. Accordingly, due to the lack of evidence that the issues raised in Complaint 1 have been addressed as they clearly were not consolidated for processing with Complaint 2 as indicated by the Agency, we find it necessary to vacate the Agency’s final decision and remand both complaints for a supplemental investigation and further consolidated processing. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby VACATE the Agency’s December 15, 2021 final decision and REMAND both Complaint 1 and 2 to the Agency for further consolidated processing in accordance with the following Order. 2022001323 7 ORDER Within one hundred and twenty (120) calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation, in accordance with 29 C.F.R. § 1614.108, into the claims raised in Complaint 1, which shall include supplementing the investigation in Complaint 2, if necessary, based on the inter-related nature of the claims in both complaints. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the supplemented and original investigative files and also shall notify Complainant of the appropriate rights, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a consolidated final decision on both complaints within sixty (60) calendar days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the supplemented investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. 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. 2022001323 8 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 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. 2022001323 9 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 (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 February 22, 2023 Date