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

Equal Employment Opportunity Commission

Nov 14, 2022

Appeal No. 2021004688 (E.E.O.C. Nov. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lance V.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004688 Hearing No. 451-2017-00094X Agency No. 4G-780-0013-17 DECISION On August 23, 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 June 21, 2021 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Laborer Custodial, PS-04, at the Agency’s South Congress Station in Austin, Texas. On November 30, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (Post-Traumatic Stress Disorder (PTSD), depression, stress, and anxiety) 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. 2021004688 2 1. on September 12, 2016, management did not follow Complainant’s medical restrictions and did not provide reasonable accommodation; 2. on September 19, 2016, Complainant was sent home; 3. on September 22, 2016, Complainant was required to provide medical documentation for his leave; 4. on September 23, 2016, Complainant was sent home and asked to provide Union Representation when he returned; 5. on October 3, 2016, Complainant became aware that he was charged fifty (50) hours of Absent Without Leave (AWOL); 6. on unspecified dates, Complainant was assigned the hardest and most undesirable work duties; and 7. on unspecified dates, Complainant was denied overtime. In Claim (1), Complainant claimed that he has asked management for an accommodation for the previous six years. Complainant’s manager (S1) responds that Complainant never requested a reasonable accommodation. However, S1 noted he discussed Complainant’s restrictions with his union steward and that Complainant agreed to clean bathrooms, clean the lobby, and empty trash cans. The record contains a Rehabilitation Job Offer dated October 30, 2012. In the offer, the Agency noted Complainant was injured on March 28, 2010, and based on an October 5, 2011, assessment of “available necessary tasks,” the Agency was offering Complainant a rehabilitation modified position of Laborer Custodial, Tour 2. In this position, Complainant would be limited to lifting/carrying up to six pounds (continuous) and 10 pounds (intermittent). Complainant could also push and pull for one hour per day. Accordingly, Complainant would “[s]weep and mop break room, sweep out carrier cases, power wash parking lot down stairs, empty trash cans, police postal facility area.” Complainant alleged, in Claim (2), that he was working by himself, and S1 called him to go clean the lobby and countertops. S1 started telling Complainant how filthy the building was and that the other custodians clean better. S1 confirmed he told Complainant that the building was filthy but added that Complainant was in the custodian room playing games, and that Complainant failed to follow S1’s direct orders three times; Complainant told S1 he was not emptying trash cans. Complainant averred that he ultimately provided the documentation S1 sought in connection with Claims (3) and (4). In Claim (5), Complainant contended he was taken off the clock and was not given any reason. Complainant asserted that because he was taken off the clock, he was not AWOL. In response to Claims (3), (4), and (5), S1 explained that Complainant did not have any scheduled approved leave and did not come to work for a week. On September 22, 2016, Complainant left without an approved leave slip and then did not call in to notify management of his absences. Thus, he was considered AWOL for two hours on September 22, 2016, and eight hours per day between September 22 and 30, 2016, except for his regularly scheduled off days. 2021004688 3 Complainant specified that he was assigned the hardest and most undesirable duties in Claim (6) between September 19 and October 25, 2016. Complainant asserted that he was being made to do the work of three employees, which exceeded the scope of his position. S1 explained that on September 19, 2016, another custodian had his day off, and during this time, a third custodian was on leave protected under the Family and Medical Leave Act (FMLA). According to S1, Complainant told him during this time that his restrictions prevented him from emptying the trash cans. In Claim (7), Complainant argued that S1 refused to provide him overtime because he had medical restrictions and limitations, but he was still capable of working overtime. S1 responded that Complainant was not on the Overtime Desired List (ODL). S1 said that if Complainant was on the ODL, then S1 would provide overtime if it available. However, Complainant never brought it to his attention. 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 timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency concluded that Complainant failed to sufficiently rebut S1’s legitimate, nondiscriminatory reasons for his actions. In addition, the Agency found that Complainant was not subjected to a hostile work environment because the alleged conduct was not sufficiently severe or pervasive nor based on discriminatory animus. As a result, the Agency found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL In his brief on appeal, Complainant reiterates his argument that the Agency failed to sufficiently investigate his claims. Complainant then argues that, as a 10-point veteran, his claims should be accorded respect and due consideration. Complainant maintains that the Agency failed to reasonably accommodate him, and that the Agency’s rationale for denying him overtime is false because his medical conditions did not restrict him from working overtime. Complainant asserts that he identified witnesses who would have testified in support of his harassment claim, but they were never interviewed and had retired by “the time we were able to go forward.” Accordingly, Complainant requests that the Commission reverse the final decision. 2021004688 4 ANALYSIS AND FINDINGS As a preliminary matter, we address certain of Complainant’s arguments on appeal. We respect that Complainant is a 10-point veteran, but military veteran status is not, on its own, a protected basis under EEO statutes. Further, upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. While Complainant criticizes the adequacy of the Agency’s investigation, we note that Complainant exercised his right to a hearing before an EEOC AJ, and then withdrew it. Had Complainant continued with the hearing process, he would have had the opportunity to conduct discovery and to cure alleged defects in the record. We note that the hearing record indicates that some discovery took place. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. 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 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Denial of Reasonable Accommodation - Claim (1) In order to establish that Complainant 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 a reasonable accommodation. See Enforcement Guidance: 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. See 29 C.F.R. §§ 1630.2 (o) and (p). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is a qualified individual with a disability. The Commission finds that there is no evidence that the Agency denied Complainant reasonable accommodation in violation of the Rehabilitation Act. In this case, the record shows that Complainant was working a limited duty position, and there is no evidence that Agency management issued Complainant work assignments or duties that exceeded Complainant’s medical restrictions. Further, Complainant does not clarify what, if any accommodations, he needed beyond the limited duty job he was working. 2021004688 5 While Complainant may not have been offered the reasonable accommodation of his preference, an employer is not required to provide the precise accommodation the employee or applicant wants, so long as the accommodation offered is an effective one under the circumstances of the situation. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Complainant has not offered any evidence that the accommodations provided to him were ineffective. Accordingly, the Commission finds that Complainant failed to show that the Agency denied him reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment - Claims (2) - (7) To prevail in a disparate treatment claim, 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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We will assume arguendo that Complainant established a prima facie case of discrimination and reprisal. In this case, as more fully explained above, S1 articulated legitimate, nondiscriminatory reasons for his actions. For example, he sent Complainant home because he was playing games instead of doing his job. He charged Complainant AWOL because Complainant did not appear at work for a week and did not call in. Additionally, Complainant was not given overtime because he was not on the ODL. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). On appeal, Complainant argues that the record contains evidence S1 discriminated against him by not granting him overtime because S1 said that his limited duty assignment precluded overtime. However, S1 also said that Complainant was not on the ODL and he was not aware that Complainant wanted overtime. Although Complainant insists he sought overtime, the record does not provide sufficient evidence for us to find, by a preponderance of the evidence, that Complainant was denied overtime. As Complainant withdrew his request a hearing, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. 2021004688 6 The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal. Hostile Work Environment Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 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. 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. 2021004688 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. 2021004688 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 November 14, 2022 Date