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

Equal Employment Opportunity Commission

Jun 13, 2022

Appeal No. 2020005226 (E.E.O.C. Jun. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alonzo L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020005226 Hearing No. 410-2017-00569X Agency No. 4G320000816 DECISION On July 3, 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 June 16, 2020, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Distribution Window Clerk at the Agency’s Dawson, Georgia Post Office. Complainant was born in February 1961. Complainant identified his disability left and right shoulder injuries. Complainant stated that, as of October 2015, he had the following limitations as a result of his left shoulder injury: no lifting more than 20 pounds with left arm and no pushing or pulling more than 30 pounds. Complainant alleged that he was forced to sign an Offer of Modified Assignment dated October 13, 2015, even though the assignment required that he perform work outside of his physical restrictions. 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. 2020005226 2 The Offer of Modified Assignment listed the following physical requirements: no lifting greater than 20 pounds using left arm, no pushing or pulling greater than 30 pounds using left arm, no reaching above the left shoulder, and no climbing. Complainant averred that he made the Postmaster, the Acting Postmaster, and the Supervisor aware that the assignment exceeded his medical restrictions and alleged that he was denied a reasonable accommodation. According to Complainant, when he requested assistance dispatching mail, the Acting Postmaster told him to do his best without violating his restrictions. Complainant stated that, on October 21, 2015, he made a written request to see a physician for right shoulder pain as a result of working outside of his medical restrictions. On January 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical) and age (born in 1961) when: 1. On October 13, 2015, he was forced to sign an Offer of Modified Assignment beyond his restrictions; and 2. On October 17, 2015, after he told the Acting Postmaster that he was unable to dispatch mail because the weight and activity would require him to violate his medical restrictions, she instructed him to do his best without providing assistance, which violated his restrictions. At the conclusion of the investigation,2 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 requested a hearing, but the AJ dismissed the hearing request as a sanction for failure to show good cause for failing to comply with the AJ’s order. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s final decision found that, while Complainant established that he was an individual with a disability and a qualified individual with a disability, he did not establish by the preponderance of the evidence that he was denied a reasonable accommodation. The Agency determined that the Offer of Modified Assignment did not exceed Complainant’s medical restrictions. Further, although Complainant request for assistance while dispatching mail was denied, the Acting Postmaster instructed him to do his best without exceeding his restrictions. Regarding his request to see a doctor right shoulder pain, the record did not reflect that Complainant had requested an accommodation. The Agency found that, assuming for the purposes of the decision that Complainant established a prima facie case of disparate treatment based on age and disability, management articulated legitimate, nondiscriminatory explanations for its actions. 2 The Agency initially dismissed the complaint for failure to state a claim. On appeal, we reversed the dismissal of claims (1) and (2) and affirmed the dismissal of the remaining claim. EEOC Appeal No. 0120161269 (March 30, 2017). 2020005226 3 Regarding the October 13, 2015 Offer of Modified Assignment, the Acting Postmaster denied forcing Complainant to sign the document, and the record reflected that she allowed him to have his physician review it before Complainant signed it on October 16, 2015. Concerning dispatching mail on October 17, 2015, the Acting Postmaster stated that she instructed Complainant to do his best to safely dispatch the mail within his restrictions, and she did not recall Complainant telling her that dispatching mail exceeded his restrictions. The final decision found that Complainant did not meet his burden of establishing by preponderant evidence that the Agency’s legitimate, nondiscriminatory reasons were pretextual. According to Complainant, management’s actions were based on his disability because management was aware of his medical restrictions. Complainant asserted that his age was the factor because the Acting Postmaster had asked Complainant his age when he returned from an October 2, 2015, dental appointment. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed.3 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”). The Commission’s regulations confer upon its AJs very broad responsibility for adjudicating an EEO complaint once a complainant's hearing request has been granted, and that responsibility gives the AJs wide latitude in directing the terms, conduct, or course of EEO administrative hearings. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). The AJ's discretionary authority includes the power to impose sanctions upon a party that fails to comply with her orders. See 29 C.F.R. § 1614.109(f)(3). Here, the AJ ordered the parties to confer and provide a status update, but Complainant did not respond to the order or to multiple emails from the Agency’s representative. On April 7, 2020, the AJ issued an Order to Show Cause, which warned Complainant that failure to show good cause could result in sanctions, including forfeiture of the right to a hearing. In response to the Order to Show Cause, Complainant stated he was waiting for the Agency representative to contact him. 3 On appeal, Complainant raises new claims of discrimination concerning events that occurred in 2020. To the extent Complainant wishes to pursue these matters through the EEO process, he is advised to contact an EEO counselor. 2020005226 4 The AJ, who was copied on the emails from the Agency representative to Complainant, noted that Complainant provided no evidence of any attempts to contact the Agency representative, found that Complainant did not demonstrate good cause and dismissed the hearing request. Under these circumstances, we find that the dismissal of Complainant’s hearing request did not constitute an abuse of discretion. Upon careful review of the Agency’s decision and the evidence of record, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected him to discrimination 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. 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). 2020005226 5 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. 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 June 13, 2022 Date