[Redacted], Yael S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 29, 2022

Appeal No. 2021000064 (E.E.O.C. Aug. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Yael S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021000064 Hearing No. 410-2020-00122X Agency No. 4K-300-0086-12 DECISION On September 25, 2020, 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 14, 2020, final decision concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. At the time of events giving rise to this complaint, Complainant worked as a Manager, Customer Service, EAS-20 at the Agency’s Riverdale-Church Street Station facility in Riverdale, Georgia. On May 1, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), disability (osteoarthritis hip and knee), and age (52) when: 1. On December 15, 2011, management failed to respond to Complainant’s request of where to report for duty on January 3, 2012; 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. 2021000064 2 2. On January 20, 2012, Complainant was instructed not to report to the Midtown Post Office and instructed to use leave until her request for reasonable accommodation was finalized; her request for reasonable accommodation was denied and she was not paid correctly for Pay Period 2; 3. On January 23, 2012, Complainant received a letter scheduling her for a District Reasonable Accommodation Committee (DRAC) meeting; 4. On February 3, 2012, her pay for Pay Period 3 was not correct; 5. On or about February 29, 2012, she was denied access to Riverdale Post Office and its employees; 6. On March 2, 2012, management refused to sign her disability insurance papers; and 7. From February 2012, and ongoing: a. She has not been told the result of the investigation conducted by the Office of Inspector General (OIG); b. She has not been told who to report to administratively; c. She has not received a decision from DRAC; and d. She has not been able to retrieve her personal belongings from the Riverdale Post Office. 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 Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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 her to discrimination as alleged. The Agency determined that Complainant failed to show that the Agency violated the Rehabilitation Act when she was denied a reasonable accommodation as alleged in claims 2 and 3. The Agency determined that Complainant failed to demonstrate that she was able to perform her position with or without reasonable accommodation or that she identified a vacant funded position to which she could have been reassigned. Furthermore, because Complainant could not perform her position, management instructed her to use leave while it reviewed her request for reasonable accommodation. As to the issues of pay raised in claims 2 and 4, the Agency noted that Complainant did not directly address the claim of discrimination for these events and only provided her pay stubs with annotations asserting issues with the number of hours she should have been paid. Report of Investigation (ROI) at 733 and 923-31. As such, the Agency found that Complainant did not establish her prima facie case of discrimination. As for the Complainant’s other claims of disparate treatment, assuming arguendo that she established her prima facie case, the Agency found that it provided legitimate, nondiscriminatory reasons for its actions. Turning to claims 1 and 2, Complainant had been assigned to work at the Midtown Station by the Manager back on April 1, 2011. ROI at 883 and 918. 2021000064 3 When she was directed to return to work, Complainant contacted the Manager again who she believed was still the responsible management official based on his letter from April 2011. ROI at 1015-16. However, the Manager was no longer the manager at the Riverdale Post Office and based on the miscommunication, he took on the initiative to resolve Complainant’s issue about where she was to report to duty in January 2012. Id. Based on her limitations and her prior concerns with the facility, Manager informed Complainant not to report to the Midtown facility while they tried to address her reasonable accommodation request. Id. at 1017. As to claim 6, the Postmaster averred that she refused to sign the papers because she possessed no factual information, documentation, or knowledge to sign them and she believed that if she signed the documents, it would have constituted falsification of documents. ROI at 1063. 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”). Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant facts and correctly identified the legal standard for Complainant to prove that she was subjected race, sex, disability, and age discrimination. As for part of claims 2 and 3, under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship.2 29 C.F.R. § 1630.9. Concerning her allegations of disparate treatment discrimination alleged in claims 1, 2, 4, and 6, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In order to establish a hostile work environment, Complainant must prove: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class status; (3) the harassment complained of was based on his statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. See Davis v. Dep't of the Army, EEOC Appeal Nos. 01A24469, 01A20558 (Nov. 14, 2003), see also 29 C.F.R. § 1604.11. Both on appeal and in the FAD, the Agency has considered all the circumstances and statements of witnesses and found that there was no discriminatory intent on the part of management. 2 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). 2021000064 4 Furthermore, we find that Complainant has not argued that she was able to perform her position or any other position to which she could have been assigned as a reasonable accommodation. Throughout the record, the predominant support for Complainant's claims are her own assertions, with no evidentiary support, including statements or documentation, to corroborate her claims. Complainant has not shown pretext, nor that the Agency’s actions were based on discriminatory animus. She likewise has not proved that she was subjected to a hostile work environment due to her protected bases. Based on a thorough review of the record, we find that the final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2021000064 5 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. 2021000064 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 August 29, 2022 Date