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

Equal Employment Opportunity Commission

May 23, 2022

Appeal No. 2022001990 (E.E.O.C. May. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allan L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001990 Hearing No. 510-2021-00140X Agency No. 4B-006-0056-20 DECISION On February 22, 2022, 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 March 3, 2022, final decision 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., 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the Post Office in Juana Diaz, Puerto Rico. On July 2, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of sex (male), disability (PTSD and lower back pain), age (50), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2022001990 2 1. On March 23, 2020, an investigation was initiated against him without due process and he was instructed to report to the Aguirre Post Office; 2. On April 16 and 26, 2020 and May 4, 2020, his requests to be reinstated to the Juana Diaz Post Office due to his medical condition were neither responded to nor granted; and 3. On April 30, 2020, he was issued a proposed disciplinary action which was upheld via Letter of Decision dated May 22, 2020. 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 requested a hearing, but the AJ denied the hearing request on the grounds that Complainant failed to submit the required Preliminary Case Information or respond to the Order to Show Cause. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant did not establish a prima facie case of reprisal or disability discrimination because the evidence in the record indicated that management officials were not aware of Complainant’s prior protected EEO activity or of his disability at the time. Even assuming that Complainant had established a prima facie case, the Agency found that management articulated a legitimate, nondiscriminatory reasons for the investigation and disciplinary action; namely, that a number of other employees at the post office had filed numerous complaints about Complainant’s behavior. The decision also found that Complainant was not denied an accommodation because he did not submit any medical documentation in support of his requested accommodation. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Neither Complainant nor the Agency filed any arguments on appeal. ANALYSIS AND FINDINGS Standard of Review 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 2022001990 3 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 Corp. 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, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. 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 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the Agency established legitimate, nondiscriminatory reasons for the investigation into Complainant’s conduct which resulted in the letter of warning. The Acting Manager of Post Office Operations (AM) stated that she received multiple complaints from union representatives stating that Complainant had not provided personal protective equipment for the employees, had made inappropriate comments, and retaliated against an employee that contacted the union. See Report of Investigation (ROI) at 218. The internal investigation found that numerous employees at the Juana Diaz Post Office confirmed that Complainant’s management style was not professional, they could not tell when he was joking or serious, and Complainant frequently used foul language which often had sexual overtones, even when customers were present. See ROI at 254, 316. The investigation specifically emphasized that all of the employees who worked for Complainant at the Juana Diaz Post Office believed that Complainant retaliated against anyone who did anything which he did not like. See ROI at 254. AM attested that Complainant was asked to report to the neighboring Aguirre Post Office due to the escalating tension in the Juana Diaz Post Office resulting from Complainant’s retaliatory and harassing conduct. See ROI at 220. 2022001990 4 AM further explained that she issued the letter of warning because the investigation revealed that Complainant had violated postal regulations and the severity of the accusations warranted administrative corrective action. See ROI at 231. Complainant contends that both the investigation and the letter of warning were discriminatory due to reprisal and his age, asserting that the Agency has a pattern of “attacking old postmaster[s]” to encourage them to retire. See ROI at 164. Additionally, he specifically disputes the accusation that he engaged in sexual harassment. See ROI at 169. We find that Complainant has not established that any of the Agency’s reasons were pretext for discrimination. To begin with, AM asserted that she was unaware of Complainant’s prior EEO activity and disability. See ROI at 215-216. Moreover, Complainant does not dispute that he engaged in the behavior which was found to be inappropriate, but contended that he was joking. See ROI at 281-82. To the extent Complainant appears to argue that he was falsely accused of sexual harassment because his only inappropriate behavior was the use of sexual profanity, we note that the use of sexual profanity can constitute sexual harassment. See Wild v. Dep’t of Defense, EEOC Appeal No. 01984104 (Sept. 8, 2000). There is no evidence in the record to support Complainant’s assertions of pretext. The mere fact that Complainant disagrees with the Agency’s decision to investigate and punish his own inappropriate behavior does not establish that the Agency’s proffered reasons were pretext for discrimination. See Morin v. Dep’t of Health and Human Services, EEOC Appeal No. 020073357 (Sept. 16, 2009). Moreover, the Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). Therefore, we find that Complainant has failed to meet his burden in establishing that the Agency’s legitimate, nondiscriminatory reasons were pretexual. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment 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); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). 2022001990 5 We conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by any of his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Reasonable Accommodation Under the Commission’s regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and 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 reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation. However, an agency is obligated to make reasonable accommodation only to the physical or mental limitations resulting from a disability that is known to the agency. Thus, an agency is not expected to accommodate disabilities of which it is unaware. Generally, it is the responsibility of the employee with a disability to request a reasonable accommodation. 29 C.F.R. pt. 1630 app. § 1630.9; see also Enforcement Guidance on Reasonable Accommodation (Oct. 17, 2002) at Questions 40, 41. Complainant contends that the Agency denied him a reasonable accommodation by not granting his requests to be returned to the Juana Diaz Post Office. The record reflects that Complainant emailed AM, as well as a Human Resources Manager and another Agency official, on April 16, 2020, seeking to be returned to the Juana Diaz Post Office due to his lower back condition, which he explained prevents him from traveling long distances. See ROI at 32. In the email, Complainant stated that he had not previously requested a reasonable accommodation because he lived less than ten minutes away from the Juana Diaz Post Office. His condition, however, has been impacted by the longer travel required to get to the Aguirre Post Office. See id. According to Complainant, he did not receive a response to his request. See ROI at 169. When asked what action was taken in response to Complainant’s request, the AM attested that Complainant “was to report to Juana Diaz Post Office upon finalization of the investigation”, but that Complainant had not returned to the facility because he has been on leave. See ROI at 225. Further, she stated was not aware that Complainant suffered from a disability and noted she had not received any medical documentation of a disability which would require an accommodation. See ROI at 216, 227. As an initial matter, we shall assume for purposes of analysis only, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. Regarding Complainant’s email request to return to Juana Diaz Post Office to minimize the impact driving to location farther from him home had on his back condition, AR attested that she was “unaware of any request of accommodation for a medical condition or impairment made by [Complainant].” 2022001990 6 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). Complainant attested that he did not receive a response to his request. While the Agency should have responded to the email as a request for a reasonable accommodation, and engaged in the interactive process, the record reflects that AM’s failure to respond did not result in the denial of a reasonable accommodation because Complainant was out on leave and not required to continue driving to the Aguirre Post Office. Therefore, under the instant circumstances, we do not find that Complainant was denied a reasonable accommodation in violation of 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 decision finding that Complainant did not establish that he was denied a reasonable accommodation or subjected to discrimination as alleged. 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 2022001990 7 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. 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. 2022001990 8 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 May 23, 2022 Date