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

Equal Employment Opportunity Commission

Mar 27, 2023

Appeal No. 2022002755 (E.E.O.C. Mar. 27, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jonathan L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2022002755 Agency No. 1F-941-0033-21 DECISION On April 13, 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 February 24, 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. 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 full time Labor Custodial at the Agency’s Processing and Distribution Center in Sacramento, CA. On June 7, 2021, Complainant initiated EEO Counselor contact. On September 3, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), and in reprisal for prior protected EEO activity 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. 2022002755 2 1. on March 17, 2021, Complainant was issued a Seven-Day Suspension; 2. on or about April 15, 2021, Complainant’s request for Emergency Federal Employee Leave (EFEL) was incorrectly entered and/or not granted; and 3. on April 23, 2021, Complainant was issued a Notice of Seven-Day Suspension for Absent from Assigned Work Area/Failure to Follow Instructions/Failure to Discharge his Assigned Duties. On September 27, 2021, the Agency issued a Partial Acceptance and Dismissal. The Agency determined that Complainant contacted an EEO Counselor on June 7, 2021, regarding the claims at issue. Regarding claim 1, the Agency determined that this contact was beyond the 45-day timeframe, and that Complainant failed to provide sufficient reasons for his delay. Accordingly, the Agency dismissed claim 1 pursuant to 29 C.F.R. §1614.107(a)(2). The Agency accepted claims 2 and 3 for investigation. The record indicates that on May 4, 2021, the Agency issued guidance on the COVID-19 Emergency Federal Employee Leave (EFEL). Complaint File (CF) at 282. The EFEL guidance clearly detailed what were acceptable qualifying reasons for EFEL leave. CF at 290. The EFEL guidance also detailed what required documents were needed to successfully process a request. CF at 291. On April 15, 2021, Complainant submitted a EFEL request. CF at 145. Complainant attached a handwritten note stating that he was “advised by [his] healthcare provider to self- quarantine due to concerns related to COVID-19.” CF at 173. The request was denied, with an explanation that medical documentation was missing. CF at 162; 175; 185. On May 7, 2021, Complainant resubmitted his request, to which he attached an April 16, 2021, note from a medical professional stating that while Complainant had no active COVID-19 symptoms, he was submitting the leave request due to an underlying medical condition. CF at 180. This request was denied. When Complainant questioned why this was denied, the Manager of Maintenance Operations (Manager) provided Complainant with a new form and showed him in the EFEL guidance that the provided documentation needed to use specific language regarding self-quarantining, which his request did not have. CF at 161. Complainant then submitted an updated medical note from his medical provider detailing the dates of the doctor’s prescribed self-quarantine. This request was approved. On April 23, 2021, Complainant was issued a Notice of Seven-Day Suspension for Absent from Assigned Work Area/Failure to Follow Instructions/Failure to Discharge his Assigned Duties (Suspension). CF at 261. The Suspension was issued after Complainant was observed, and acknowledged, taking an unauthorized break during his shift. CF at 164; 261. The Suspension noted that Complainant had previously received a December 16, 2020, Letter of Warning for also failing to follow instructions which was taken into consideration when issuing the Suspension. CF at 261. 2022002755 3 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). When Complainant did not make an election, the Agency issued a final Agency decision. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, with regard to the dismissal of claim 1, Complainant asserts that he was suffering from long COVID-19 and post-concussion syndromes that delayed his ability to timely submit documents. Complainant submits a medical note dated February 23, 2022, from a medical professional stating that Complainant was diagnosed with post-concussion syndrome and that it would be appropriate for him to continue reasonable accommodations. The Agency requests that the Commission affirm its final decision. 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, at 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”). Untimely EEO Counselor Contact - Claim 1 EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. 2022002755 4 Additionally, the Commission has consistently held that, when a complainant asserts that physical or mental health difficulties prevented contact with a counselor within 45 days, an extension is only warranted where an individual is so incapacitated by his condition that he is unable to meet the time limits. See Trevor H. v. Dep’t of Vet. Affs., EEOC Appeal No. 2019004846 (Sept. 18, 2019) citing Mason v. U.S. Postal Serv., EEOC Appeal No. 0120091320 (June 11, 2010). Hospitalization may constitute such a circumstance, but evidence that the complainant was under a physician's care is not dispositive of the issue of whether the complainant was incapacitated. Josey v. Dep’t of Health and Human Serv., EEOC Appeal No. 01990127 (Dec. 1, 1999). An assertion of medical incapacitation will not warrant an extension of the regulatory time-limits when the complainant offers no documentation of the medical condition preventing timely contact with an EEO Counselor. Id. Complainant provided a medical note on appeal to justify his untimely EEO Counselor contact. However, upon review, we find that the note does not provide any details as to how Complainant was so incapacitated that he could not timely contact an EEO Counselor regarding claim 1. Based on the record, we find that Complainant has not provided sufficient justification for extending the applicable time limit. Accordingly, we affirm the Agency’s dismissal of claim 1. Disparate Treatment - Claims 2 and 3 A claim of disparate treatment based on indirect evidence 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 or she 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. 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2022002755 5 Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. In claim 2, as noted above, the record demonstrated that the EFEL program was new and subject to restrictions. Management indicated that Complainant’s requests were initially denied because he failed to submit the appropriate documentation. Once he submitted the required documentation, the Agency approved his request which Complainant does not contest. In claim 3, the record showed that the Agency issued the Suspension after Complainant had been issued a Letter of Warning in December 2020 for failure to follow instructions and he was observed taking an unauthorized break during his shift. CF a 164; 261. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Burdine, 450 U.S. at 253. It is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Upon review, we find that Complainant has offered no evidence that any of the reasons provided by the Agency were pretextual. Therefore, we find that Complainant failed to show that he was subjected to disparate treatment with respect to claims 2 and 3. 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. 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. 2022002755 6 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. 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. 2022002755 7 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 March 27, 2023 Date