[Redacted], Harris K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2021005120 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harris K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2021005120 Agency No. 1J-531-0017-21 DECISION On September 8, 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 August 18, 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 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Assistant, 04/A, at the Agency’s Milwaukee Processing and Distribution Center in Milwaukee, Wisconsin. Complainant joined the Agency on September 12, 2020, subject to a 90-day probationary period. See Report of Investigation (ROI) at 00129. He was directly supervised by the Distribution Operations Supervisor (DOS). Id. at 00055. 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. 2 2021005120 During Complainant’s probationary period, the DOS evaluated Complainant’s performance at the 30-day, 60 day, and 90-day mark. Id. at 00079-81. Complainant ultimately did not perform well and received unfavorable 30-day and 60-day evaluations on October 29, 2020, and November 22, 2020. Id. at 00080-81. On December 4, 2020, shortly prior to the end of his probationary period, Complainant sustained a contusion on his right forearm due to an on-the-job incident. See ROI at 00068. Due to this injury, Complainant’s physician limited Complainant to no more than 20 pounds of constant lifting, pushing, and pulling. Id. That restriction was lifted on December 7, 2020. Id. at 00299. The following day, the DOS issued Complainant an unfavorable 90-day evaluation and removed him from federal service for “bad work ethic, taking extended breaks, [and] working unsafely.” Id. at 00079 and 99. On March 29, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and disability (contusion on the right forearm) when on December 8, 2020,2 he was terminated. The Agency ultimately accepted the claim and commenced its investigation. During the EEO investigation, Complainant initially clarified that he no longer believed that the Agency’s action was based on his sex. See ROI at 00063. As for his claim of disability discrimination, Complainant asserted that after he sustained an on-the-job injury on December 4, 2020, the Agency did not give him the opportunity to prove that he could perform within his restrictions and simply terminated him the next day. Id. at 00063. Complainant expressed disagreement with the Agency’s decision to remove him because he did everything that he could to the best of his ability. Id. at 00062. Complainant also emphasized that he did not file a claim for workers’ compensation benefits with the Department of Labor because he was not informed of the process or given the appropriate paperwork. See ROI at 00059. When asked whether he requested reasonable accommodation for his work restrictions, Complainant simply replied, “N/A.” Id. at 00060. The DOS, however, vehemently denied that she discriminated against Complainant and maintained that Complainant’s medical condition was not a factor in the removal action, as she was unaware that Complainant had a disability. ROI at 00072-74. Another management official, who served as the Acting DOS at the facility, found Complainant’s performance to be satisfactory. Id. at 00088. However, she also denied being aware of Complainant’s medical restrictions. Id. at 00087. 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 2 Though Complainant indicated that he was removed from federal service on December 9, 2020, our review of his Postal Service (PS) Form 50 reveals that the removal action became effective on December 8, 2020. ROI at 00099. 3 2021005120 Opportunity Commission 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 final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination based on disability, as Complainant failed to show that the Agency’s asserted reasons for removing him were pretext for discrimination. This appeal followed. Neither Complainant nor the Agency filed contentions on appeal. Having reviewed the record, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected him to discrimination. Concerning his allegation of disparate treatment discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For the purposes of analysis, we assume, without so finding, that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). In reaching this conclusion, we acknowledge that there is a dispute as to whether Complainant’s performance was satisfactory; however, we cannot resolve the dispute in Complainant’s favor. We note that Complainant not shown by preponderant evidence that his performance was in fact satisfactory. As Complainant has not persuasively shown that the Agency’s articulated reasons for removing him were pretextual or shown that Agency officials were aware of his medical restrictions, we cannot find that Complainant was subjected to discrimination as alleged. Therefore, 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). 4 2021005120 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. 5 2021005120 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 January 26, 2023 Date