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

Equal Employment Opportunity Commission

Mar 15, 2023

Appeal No. 2022003707 (E.E.O.C. Mar. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Will K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003707 Hearing No. 460-2021-00188X Agency No. 4G-700-0052-21 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 1, 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. and 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 Postal Support Employee (PSE) Sales and Services Distribution Associate at the Agency’s Northside Post Office in Monroe, Louisiana. 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. 2022003707 2 On February 22, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (Black), sex (male), color (black), disability (myoclonic seizures, degenerative disc disease, posttraumatic stress disorder, anxiety/depression, psychosis, and visual and audio hallucinations), and in reprisal for prior protected EEO activity when, on December 6, 2020, he was terminated from Postal Service. 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 EEOC Administrative Judge. Complainant 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 instant appeal followed. In its final decision, the Agency explained that the Postmaster chose not to reappoint Complainant to a new term as a PSE Sales and Services Distribution Associate. The Postmaster stated that in the past, Complainant, who was a non-career PSE, had been hired to term appointments not to exceed 360 days, followed by a 5-day break-in-service before being reappointed to his position. Complainant’s then-current term ended on December 6, 2020. On that date, Complainant had been absent from work for about a year and a half due to illness. The Postmaster had previously approved a Notice of Separation against Complainant based on the fact that Complainant had not reported to duty for over a year, but that separation was not effectuated.2 When the Postmaster learned that the separation had not occurred and that Complainant’s PSE appointment was about to end, she decided not to reappoint him to a new term because the office was already understaffed and none of his medical documentation previously provided to the Agency indicated when he would be able to return to duty. The Agency concluded that management had legitimate, nondiscriminatory reasons for electing not to reappoint Complainant to a new term as a PSE because of his lengthy absence with no predicted date of return. The Agency concluded Complainant failed to show these reasons were pretextual or that similarly situated employees had been treated more favorably. 2 The issuance of the Notice of Separation was the subject of a separate appeal filed with the Commission. See Williams S. v. U.S. Postal Serv., EEOC Appeal No. 2022000264. 2022003707 3 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 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”). We will 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 he was a qualified individual with a disability within the meaning of the Rehabilitation Act. Complainant could not perform the essential functions of his position with or without a reasonable accommodation due to his extended absence and had been on leave for more than a year. We also note the record does not indicate that Complainant requested a reasonable accommodation; nor does the record contain medical documentation showing Complainant was fit to return to duty. After a review of the record, we also find that Complainant failed to show that the Agency’s articulated reasons for its actions were a mere pretext for discrimination or retaliation. Based on the medical submissions by Complainant that failed to identify an expected return-to-duty date and the fact that he had been on leave for over a year, management chose not to renew his term appointment. Furthermore, 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. On appeal, Complainant claims that the Agency form submitted for his separation listed a different reason for the separation-“failure to provide documentation for absence”-than the one provided by the Postmaster, which therefore calls into question the Agency’s stated reasons for not reappointing him. Complainant also claims that the “only reason [he has] been off so long with illness is because [he] was harassed by” his supervisor and that she was the cause of his medical conditions.3 The Agency concedes there is a discrepancy between the Agency form saying Complainant failed to provide documentation supporting his absences and the Postmaster’s articulated reasons that Complainant had not reported to work for about a year and a half and his medical documentation did not provide an estimated date upon which he could return to duty. 3 We note that Complainant filed an additional brief in support of his appeal more than 30 days after he filed his appeal, and the brief is therefore untimely. Even if we consider this second brief, however, we find that the arguments raised therein do not alter the ultimate finding of no discrimination. 2022003707 4 The Agency, however, argues that the discrepancy was simply a clerical error. We find that the reasons provided by the Agency on the form and by the Postmaster are not contradictory and appear to be part of the same rationale. Complainant had not been at work for an extended time and had not provided any indication when or if he would return to work, so he was not reappointed. We find that Complainant has not shown that the Postmaster’s articulated reasons were motivated by discrimination or retaliation. Complainant also provides no medical documentation or other evidence, aside from his own assertions, that indicate his medical conditions are the result of harassment by management officials. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination or retaliation 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). 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. 2022003707 5 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. 2022003707 6 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 15, 2023 Date