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

Equal Employment Opportunity Commission

Jul 25, 2022

Appeal No. 2021002786 (E.E.O.C. Jul. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tiffani W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002786 Hearing No. 550-2019-00416X Agency No. 4E-970-0058-18 DECISION On April 13, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 25, 2021 final order concerning her 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency’s Post Office in St. Paul, Oregon. On November 15, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of disability (Autism) when management failed to provide her with a reasonable accommodation regarding her learning rate, error processing, and time management skills which led to her being fired during her probation period for “poor work performance.” 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. 2021002786 2 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts. On January 8, 2018, Complainant began working as a Rural Carrier Associate. The duties of the Rural Carrier Associate, generally, are to fill in for Regular Carriers when they are out. Specifically, on an “as needed” basis, the Rural Carrier Associate cases, pulls down, and delivers mail to rural areas using her own vehicle. On June 29, 2018, Complainant was terminated from her position. Complainant’s supervisor (S1) made the decision to terminate Complainant and issued the letter of termination. The letter stated that Complainant was terminated for “unsatisfactory work performance.” S1 explained that Complainant’s work was unsatisfactory because she delivered mail to the wrong address on multiple occasions, resulting in customer complaints. In addition, Complainant missed several scans that were needed to provide updates on delivery status. S1 testified that Complainant received training, including three days with a carrier; week-long academy training in Portland; and coaching from S1. Despite the training, coaching, and occasional assistance with preparation, S1 found that Complainant demonstrated “little sense of urgency” to complete her work. S1 also observed that Complainant “acted offended when given corrective criticism for the errors that she made.” Complainant disagreed with S1’s decision to terminate her employment, asserting that she could perform her work duties with a reasonable accommodation. According to Complainant, during an April 12, 2018 meeting with her union representative and S1, she informed S1 that she had been diagnosed with Autism. Complainant attested that she requested an accommodation in the form of additional time to learn the job, in order to “handle things that happen out of routine”, as well as additional time to complete deliveries. She also believed that the mistakes she had made could be addressed with additional time for morning pre-delivery preparation. However, S1 denied her request for additional time, and offered additional training instead. In Complainant’s opinion, the additional three days of training was insufficient to address her need for additional time to organize her workload in the morning, since she had to change offices and routes all the time. In a performance evaluation, dated April 30, 2018, Complainant received an “unsatisfactory” rating for three of the six factors. Weeks later, in her June 5, 2018 evaluation, Complainant was rated as “unsatisfactory” for 5 out of 6 performance factors. On June 28, 2018, S1 issued Complainant a letter of termination. The letter specified that Complainant was being terminated due to unsatisfactory work performance. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. 2021002786 3 On April 9, 2020, the AJ issued a notice of intent to issue a decision without a hearing. The parties submitted responses. Complainant argued that summary judgment was inappropriate because there were material facts in dispute. Complainant disputed S1’s testimony denying that the April 12, 2018 meeting occurred or that Complainant had ever requested an accommodation. Notwithstanding Complainant’s contentions, the AJ issued a final decision without a hearing, finding that Complainant failed to establish that she was subjected to disparate treatment. The AJ reasoned that Complainant did not show that the Agency’s proffered legitimate, non- discriminatory reason (i.e. her poor performance and poor attitude) were pretext. Instead, noted the AJ, Complainant did not dispute her delivery errors but “argues she was unable to perform without mistakes because she required a reasonable accommodation. . ..” As for the denial of a reasonable accommodation, assuming that Complainant was a disabled individual, the AJ found that Complainant did not establish that she was “qualified”. The AJ reasoned that Complainant “failed to grasp the RCA duties with more training and requested what amounted to more time to learn the job.” The AJ concluded that Complainant failed to prove she was discriminated against as alleged. On March 25, 2021 the Agency issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant argues, among other things, that discovery is necessary for her to prove that a meeting took place on April 12, 2018, where she asked for reasonable accommodation. The Agency submitted a reply brief arguing that discovery is not necessary because the AJ viewed all the facts in Complainant’s favor, and correctly found that she was not a qualified individual with a disability. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). 2021002786 4 Summary Judgment The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (February 24, 1995). Here, we find that the AJ erred in granting summary judgment in the Agency’s favor. The instant record reflects genuine issues of material fact, including whether Complainant informed S1 of her disability and requested an accommodation. S1 denied that the April 12, 2018 meeting occurred, insisting that Complainant was not at work that day. Further, S1 attested that Complainant never requested a reasonable accommodation at any time during her employment and believed that her only disability concerned her knee. These critical inconsistencies between Complainant and S1’s testimony require credibility determinations at a hearing. We also note the record does not include an affidavit from the union representative that was purportedly present for the April 12, 2018 meeting. Testimony from this witness should be taken at a hearing. In sum, this case can only be resolved by weighing conflicting evidence and assessing the credibility of Complainant and S1 as well as hearing testimony from additional relevant witnesses. In the absence of a hearing, this case becomes a "trial by affidavit" as to an issue involving a disputed material fact. Redmand, 516 F.2d at 768. Only after the record is properly developed with respect to the issue of reasonable accommodation, can Complainant’s claim that her termination was discriminatory be assessed. We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), 7-1 (Aug. 5, 2015); see also 29 C.F.R. § 1614.109(e). “Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims.” Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC 2021002786 5 Request No. 05940578 (April 25, 1995). In summary, there are simply too many unresolved issues, such as whether Complainant requested additional time as a reasonable accommodation. Therefore, judgment without a hearing for the Agency should not have been granted. CONCLUSION After a careful review of the record, including arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final action and REMANDS the matter to the Agency in accordance with this decision and the Order below. ORDER Within 30 calendar days from the date this decision is issued, the Agency is directed to resubmit a request for a hearing on Complainant’s behalf to the Hearings Unit of the EEOC’s San Francisco District Office, along with the complete complaint file and a copy of this appellate decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 2021002786 6 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 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 2021002786 7 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 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 25, 2022 Date