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

Equal Employment Opportunity Commission

Jul 6, 2022

Appeal No. 2021002755 (E.E.O.C. Jul. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dante B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002755 Hearing No. 480-2020-00005X Agency No. 1F-901-0009-19 DECISION On April 10, 2021, 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 8, 2021, 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. 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. During the relevant time, Complainant worked as a Postal Clerk at the Agency’s Postal and Delivery Service Center in Los Angeles, California. On January 14, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American, Native American), sex (male), and disability (physical) when: 1. On or about March 19, 2018, he was issued a Letter of Warning; 2. On or about June 11, 2018, he was issued a Seven-Day Suspension; 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. 2021002755 2 3. On or about August 15, 2018, he was issued a 14-Day Suspension; 4. Since August 15, 2018, and continuing, he was denied reasonable accommodation when management failed to provide him with a job offer within his restrictions and required him to work beyond his restrictions; 5. On or about October 10, 2018, management refused to process his CA-7 and CA7A forms; 6. On or about November 19, 2018, he was told there was no work available within his restrictions and he was sent home; 7. On or about December 5, 2018, management improperly disclosed his medical information to other employees;2 8. On or about February 11, 2019, he was forced to accept a job offer that violated his medical restrictions and failed to include all of his restrictions; 9. On or about February 11, 2019, he was forced to accept a job offer that violated his medical restrictions and failed to include all of his restrictions; and He also alleged discriminatory harassment based on race (African-American, Native American), national origin (unspecified), religion (unspecified), sex (male), disability (physical), and in reprisal for prior protected EEO activity when: 10. On or about June 18, 2019, he was issued a Notice of Removal. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but, on January 29, 2021, the AJ dismissed Complainant’s hearing request and remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency rendered a decision, finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The immediate appeal followed. 2 To the extent Complainant argues the Agency violated the Health Insurance Portability and Accountability Act (HIPAA). While Complainant mentioned violations of the HIPAA, we find the matter is also covered by the Rehabilitation Act. EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), Notice No. 915.002 (July 26, 2000), explains that the Rehabilitation Act limits an employer's ability to make disability-related inquiries or require medical examinations. 2021002755 3 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 Emp’t Opportunity Mgmt. 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”). Upon review of the parties’ submissions and the record as a whole, we find that the Agency’s final decision accurately recounts the relevant material facts and law. Moreover, as to the discrimination claims, the Agency’s final decision properly determined that management officials articulated legitimate, nondiscriminatory reasons for its actions. At all times, the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968 (Sept. 24, 2019). Beyond Complainant’s bare assertions, the record is devoid of any indication that discriminatory motives animated any of the Agency’s actions in this case. Merely stating “others [were] treated differently” is not sufficient evidence of disparate treatment. Record of Investigation (ROI), vol. 1 at 184, 187, 189. A complainant’s generalized assertions alleging a subjective belief that a particular action was motivated by discrimination, no matter how sincere, is insufficient to show pretext. See Perry v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). Moreover, Complainant’s alleged reasons for his absences appear inconsistent. For example, he insisted in his affidavit that his absences were medical in nature. ROI, vol. 1 at 183-88. Yet, in his investigative investigation, dated June 3, 2018, Complainant explained his absences by saying that he was helping his wife “with baby” on April 3-April 4 and taking care of his wife before giving birth on May 6. ROI, vol. 3 at 14. As such, Complainant offers no evidence that any of the reasons the Agency provided to explain its actions are pretextual. Concerning Complainant’s request for a reasonable accommodation, in this case, the record reflects that the Agency attempted to provide modified work for Complainant, which he initially refused. ROI, vol. 2 at 79. He accepted a subsequently offered modified assignment, three months after the initial offer, only “under protest.” ROI, vol. 2 at 156. The evidence demonstrates the Agency scheduled two meetings with Complainant to engage in the interactive process. Complainant canceled one and failed to appear at the second. ROI, vol. 1 at 316-17. As such, the Commission finds that Complainant bears the bulk of the responsibility for the delay in a reasonable accommodation decision, and any delay is not indicia of bad faith on the part of the Agency. See Chanelle B. v. Dep’t of the Army, EEOC Appeal No. 0120182515 (Nov. 5, 2019) (complainant’s failure to provide medical documentation caused a breakdown in the interactive process because the agency was unable to determine the duration and severity of the complainant’s symptoms or determine the effectiveness of the proposed accommodation); 2021002755 4 Bergren v. Dep’t of Com., EEOC Appeal No. 0120090265 (July 17, 2012) (complainant’s failure to comply with a reasonable request from the agency for documentation indicates that he was responsible for the breakdown in the interactive process). Under the Rehabilitation Act, information “regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.” 29 C.F.R. § 1630.14(c)(1); see also 42 U.S.C. § 12112(d)(4)(C). This requirement applies to all medical information, including information that an individual voluntarily discloses. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 26, 2000). Employers may share confidential medical information only in limited circumstances: supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; first aid and safety personnel may be told if the disability might require emergency treatment; and government officials investigating compliance with the ADA and Rehabilitation Act must be given relevant information on request. 29 C.F.R. § 1630.14(c)(1). Complainant has not provided evidence to substantiate his claim of such a disclosure. Accordingly, we AFFIRM the Agency’s final decision. 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 2021002755 5 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. 2021002755 6 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 July 6, 2022 Date