[Redacted], Don O., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jul 11, 2022

Appeal No. 2021002270 (E.E.O.C. Jul. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Don O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021002270 Hearing No. 520-2020-00491X Agency No. 4B-060-0002-20 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated January 22, 2021, finding no discrimination concerning his 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician, Q-02, at the Agency’s Bayview Station in Bridgeport, Connecticut. On January 9, 2020, Complainant filed his complaint alleging discriminatory harassment based on race (Spanish) and 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. 2021002270 2 1. On July 18, 2019, he was issued a Letter of Warning (LOW) for Unauthorized Overtime. 2. On August 15, 2019, he was issued a LOW for not wearing proper postal attire. 3. On September 26, 2019, he was issued a LOW for taking his timecard home. 4. On October 4, 2019, he was sent home. 5. On October 4, 2019, he was charged 7 hours and 47 units of Leave Without Pay (LWOP) without his authorization. 6. On October 29, 2019, he was issued LOW for Unauthorized Overtime. 7. On an unspecified date, management delayed his request for accommodation to wear a vest. 8. On an unspecified date(s), he was harassed whenever he completed a PS Form 3996 (Request for Overtime or Assistance). 9. On unspecified dates(s), his request to have management do a full inspection (walk his route) of his route was not granted. 10. On unspecified date(s), he was continuously treated in a disrespectful and inappropriate manner. After completion of the investigation of the complaint, the Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Regarding claim 1, the record indicates that Complainant was issued the July 18, 2019 LOW for failure to follow instructions. Specifically, in the LOW, Complainant’s supervisor (S1)2 stated that on July 15, 2019, Complainant failed to return to the office before 18:00 and he failed to submit a required PS Form 3996 or to call that he was not returning at 18:00. The July 18, 2019 LOW was subsequently reduced to discussion. Regarding claim 2, the record indicates that Complainant was issued the August 15, 2019 LOW for failure to follow instructions. S1 stated in the LOW that on July 27, 2019, Complainant was observed not in uniform while delivering route 617. The record indicates that Complainant filed a grievance which was resolved on September 5, 2019. 2 The record indicates that due to S1’s extended leave since October 2019, he did not submit an affidavit for the investigation of the instant complaint. 2021002270 3 As a result, the Agency agreed to expunge the August 15, 2019 LOW and to allow Complainant to wear a loose-fitting uniform. Complainant’s manager (M1) indicated that during the September 5, 2019 grievance meeting, Complainant provided his doctor’s note dated August 21, 2019, indicating that Complainant should be allowed to wear loose-fitting clothing to maintain a comfortable body temperature. Regarding claim 3, the record indicates that Complainant was issued the September 26, 2019 LOW for failure to follow instructions when he refused to turn in his timecard. Complainant acknowledged that he did not turn in his timecard on the date at issue. The LOW indicated that Complainant was instructed to do so on September 20, 2019. Regarding claims 4 and 5, M1 indicated Complainant was sent home on October 4, 2019, because he took his timecard home after instructed not to do so multiple times. M1 stated that employees were not authorized to take their timecards off postal premises. Complainant did not claim or show that any other persons who took their timecard home were paid. Regarding claim 6, Complainant claimed that an identified supervisor issued him the October 29, 2019 LOW for unauthorized overtime. The identified supervisor denied issuing Complainant the LOW. The record is devoid of this LOW and Complainant did not provide the LOW. Regarding claim 7, Complainant clarified that the Agency delayed his request to wear an Under Armour (UA) shirt under a Postal vest (i.e., not just wear a vest) to keep him cool in warm weather. Complainant indicated that he was diagnosed as a Type 1 diabetic in 1990. Complainant stated that he could perform all of his duties, but he needed to wear an UA shirt to keep him cool in warm weather. On September 5, 2019, Complainant requested an accommodation during a grievance discussion, described in claim 2. M1 referred Complainant’s request to the Agency Reasonable Accommodation Committee (RAC). The RAC Chairperson indicated that she engaged in an interactive process for Complainant’s requested accommodation and held a telephonic meeting with him on September 11, 2019. On September 13, 2019, the RAC requested Complainant complete and submit RAC forms, including his medical documentation, to clarify his requested accommodation and to specify his disability and the medical need for accommodation. Meanwhile, the record indicates that on September 13, 2019, M1 informed Complainant of a temporary accommodation, effectively immediately, allowing him to wear an UA shirt under a Postal vest as he requested pending the RAC’s processing his request. Complainant subsequently submitted his doctor’s medical documentation and restriction assessment dated September 17, 2019. The RAC had another interactive meeting with Complainant on October 7, 2019. 2021002270 4 Since the medical document Complainant provided had insufficient information regarding his wearing a tight UA shirt rather than a “loose-fitting clothing to maintain a comfortable body temperature” as recommended by his doctor, the RAC requested additional information to clarify his requested accommodation on October 11, 2019. The RAC indicated that on November 12, 2019, Complainant submitted his doctor’s statement stating that Complainant found an UA compression shirt to be the optimal clothing to keep him cool. On November 19, 2019, Complainant was granted his requested accommodations to wear a compression style UA shirt with a Postal vest over it and to take a flexible break and lunch schedule. Regarding claim 8, Complainant claimed that he was questioned and harassed by S1 when he submitted the form for overtime or assistance since M1 became his manager in June 2019. M1 denied he ever directed S1 to question or harass Complainant for submitting the form. Complainant did not provide specific incident dates. Regarding claim 9, M1 indicated that employees could make special requests for inspections if they were the regular carrier and used overtime for six consecutive weeks. Complainant’s route did not meet the requirement that would necessitate such an inspection. Regarding claim 10, Complainant did not provide specific incident dates. M1 indicated that he was not aware of the alleged claim. Based on the foregoing, the Agency found that Complainant was not subjected to discrimination or harassment as alleged. The Agency also found that Complainant failed to establish that his request for accommodation was delayed. Complainant appealed from the Agency’s decision. 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 (EEO MD-110), Chap. 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"). 2021002270 5 Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable accommodation, complainant must show that: (1) he or she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he or she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). 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), 1630.2(p). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. After a review of the record, we find that Complainant failed to show that the Agency delayed his request for accommodation. The record indicates that Complainant requested management on September 5, 2019, that he be allowed to wear an UA shirt under a Postal vest to keep him cool due to his diabetic condition. Immediately after Complainant provided M1 on September 5, 2019, his doctor’s August 21, 2019 statement indicating that he be allowed to wear a loose- fitting clothing, he was allowed to wear such clothing immediately on September 5, 2019. The RAC engaged in an interactive process for Complainant’s requested accommodation for wearing an UA shirt on September 11, 2019. On September 13, 2019, the RAC requested Complainant complete and submit RAC forms, including his medical documentation, to clarify his requested accommodation and to specify his disability and the medical need for accommodation. Meanwhile, on September 13, 2019, M1 approved a temporary accommodation allowing Complainant to wear an UA shirt under a Postal vest as he requested. Subsequently, the RAC engaged in more interactive process with Complainant to effectively accommodate his request. Based on Complainant’s medical documentation, on November 19, 2019, he was allowed to wear an UA shirt with a Postal vest over it and to take a flexible break and lunch schedule. Based on the foregoing, we find that the Agency did not delay Complainant’s request for accommodation to wear a UA shirt under a Postal vest. There is no evidence Complainant was not allowed to wear a UA shirt and forced to wear a Postal uniform instead. 2021002270 6 Disparate Treatment To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community 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 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, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). In order to establish a claim of harassment, Complainant must show that: (1) he belongs to the statutorily protected classes or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes or his prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. 2021002270 7 Complainant was issued the LOWs for his unauthorized overtime; not wearing a Postal uniform while delivering mail; not turning in his timecard; and taking his timecard home after instructed not to do so multiple times. The record indicates that the July 18, 2019 LOW was subsequently reduced to discussion and the August 15, 2019 LOW was expunged via grievance. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Complainant v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant’s supervisors and manager were responsible for making business decisions, assuring compliance with Agency policy and procedures, monitoring performance, scheduling the work hours, and managing the workplace. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Regarding his claim of harassment, considering all the events, we find that Complainant failed to show that any incident was related to any protected basis of discrimination or that the conduct at issue was sufficiently pervasive or severe so as to constitute a hostile work environment. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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). 2021002270 8 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. 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. 2021002270 9 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 11, 2022 Date