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

Equal Employment Opportunity Commission

Aug 15, 2022

Appeal No. 2021003281 (E.E.O.C. Aug. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021003281 Agency No. 1G-731-0013-20 DECISION On May 19, 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 April 28, 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 Mail Processing Clerk at the Agency’s Processing and Distribution Center (P&DC) in Oklahoma City, Oklahoma. Complainant stated that he has a disabling condition of disc displacement occurring with spondylosis and radiculopathy of the spine. Report of Investigation (ROI) at 141. According to Complainant, his doctor noted he would need to use prescribed drugs and would be unable to work. ROI at 142. 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. 2 2021003281 On January 11, 2020, the Supervisor, Distribution Operations, Complainant’s first-line supervisor (Supervisor) issued to Complainant a 14-Day Suspension for failing to maintain regular attendance. ROI at 231-32. She noted that Complainant had a 7-Day suspension on file that was considered live discipline. ROI at 232. Supervisor also asserted that management previously issued a Letter of Warning to Complainant for restrictive sick leave. Complainant had previously approved leave under the Family and Medical Leave Act (FMLA). Supervisor stated that during an Investigative Interview, she informed Complainant that his FMLA Leave protection had been exhausted. ROI at 234. Supervisor issued to Complainant a 14-Day Suspension for failing to maintain regular attendance. ROI at 231-32. She noted that Complainant had a 7-Day suspension on file that was considered live discipline. ROI at 232. Supervisor also asserted that management previously issued a Letter of Warning to Complainant for restrictive sick leave. Complainant had previously approved leave under the Family and Medical Leave Act (FMLA). Supervisor stated that during an Investigative Interview, she informed Complainant that his FMLA Leave protection had been exhausted. ROI at 234. According to Complainant, management did not issue discipline to a Tour Three Automation Clerk (Coworker 1) who had medical conditions, for his absences. Complainant asserted that Coworker 1’s absences were at the same threshold as his and did not pertain to medical conditions. ROI at 147. Complainant stated that management issued discipline to a Tour Three Automation Clerk (Coworker 2) who had a medical condition qualifying him for FMLA for attendance. ROI at 145- 147. Complainant also stated that management terminated a Tour Three Automation Clerk (Coworker 3) who had similar injuries to Complainant's, when Coworker 3 could not renew his FMLA. ROI at 148. Supervisor subsequently gave Complainant an Investigative Interview and then issued him a Notice of Removal for failing to maintain regular attendance. According to her, in addition to the 14-day suspension that Complainant had on file, he had six unscheduled absences since that discipline was issued to him. ROI at 235-36. Believing that his medical condition was the real reason for management's actions, on April 11, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (physical) when: 1. On January 8, 2020, Complainant was issued a 14-Day Suspension; and 2. On February 13, 2020, Complainant was given an Investigative Interview and subsequently on February 28, 2020, he was issued a Notice of Removal. 3 2021003281 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. On April 5, 2021, the Agency notified the AJ assigned to the case of Complainant’s request. On April 6, 2021, the AJ remanded the matter to the Agency to issue a final agency decision. Consequently, on April 28, 2021, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In the FAD, the Agency deemed Complainant as having an actual disability within the meaning of the Rehabilitation Act during the relevant timeframe. The Agency also addressed Complainant’s disparate treatment claims under the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Agency assumed, only for the sake of argument, that Complainant has established a prima facie case of discrimination based on medical condition and determined that management had articulated a legitimate, non-discriminatory explanation for the alleged actions. Regarding claim 1, Supervisor stated that consistent with applicable agency policies, she issued the alleged discipline to Complainant because he failed to be regular in attendance. ROI at 235. Supervisor asserted that management treated all employees similarly for failing to maintain regular attendance. She identified 11 employees (with and without medical conditions) under her supervision who were issued discipline between December 2019, and June 2020. She added that the levels of discipline management issued were different and based on what live discipline the employee had at the time. ROI at 241-42. Supervisor stated that she did not issue discipline to Coworker 1 because his absences were covered by FMLA and he had not run out of his allotted 480 hours of FMLA. ROI at 241-42. Also, included in the record are PS Form 50 (Notification of Personnel Action) dated April 11, 2020 and PS 3972 Absence Analysis 2019 and 2020 for Coworker 1 that support Supervisor’s statements. See ROI at 285-89. According to Supervisor, Coworker 2 was not issued discipline for attendance; rather, management issued him a 7-day suspension for failing to timely report an on-the-job accident that happened to him. ROI at 239-40. See ROI at 280-84 for a PS Form 50 (Notification of Personnel Action) dated April 11, 2020 and a PS 3972 Absence Analysis 2019 and 2020 for Coworker 2 that support Supervisor’s statements. Supervisor added that Coworker 3 was issued a Notice of Removal for failing to maintain regular attendance. She stated that Coworker 3 also had Absent Without Leave (AWOL) charges for being "no call, no show" for several months. ROI at 240. Regarding claim 2, Supervisor explained that, consistent with applicable Agency policies, she issued to Complainant the Notice of Removal because he failed to be in regular attendance by having six unscheduled absences after being issued the 14-day suspension. ROI at 237. 4 2021003281 Supervisor stated that Complainant never informed her that his attendance issue was due to a work- related injury. She noted that during the investigative interview, Complainant stated that January 22, 2020, was to prepare for a medical procedure to be held on January 23, 2020. She added that he also indicated that January 24, 2020, was for recovery. According to Supervisor, Complainant called in for January 12, 2029; January 22, 2020; January 23, 2020; January 24, 2020; and February 5, 2020. Complainant also left early on February 9, 2020. She stated that Complainant called in for each day individually; therefore, each absence became its own occurrence instead of all three days being one incident. ROI at 237. The record includes an Absence Analysis PS Form 3972 Leave Year 2019 and 2020 for Complainant which shows that he had unscheduled leave 39 times from August 17, 2019 through January 3, 2020; and that he had 12 unscheduled leave dates from January 4, 2020, through March 28, 2020. None of the stated unscheduled leave was FMLA related. See ROI at 264-67. See also ROI at 268-72 for record evidence showing that Complainant was aware that employees are expected to maintain their assigned schedule and must make every effort to avoid unscheduled absences and provide acceptable evidence for absences when required. The evidence also shows that of the six days listed, one day Complainant did not have documentation, one day was due to the weather, one day he submitted a PS 3971, and for the three days of January 23, 24, 25, 2020, Complainant informed management that he would get documentation from his doctor. The record is devoid of any evidence that he did. CONTENTIONS ON APPEAL On appeal, among other things, Complainant reiterates his allegations. He asserts that after reading the FAD, he understood that the evidence he presented, including identifying similarly situated employees, fell short in proving the alleged discrimination and pretext. According to Complainant, Supervisor was aware of his injury; and she was aware that he was no longer protected by FMLA. Complainant argues that when Supervisor became aware that he would have to be absent in the future to treat his injury; and that he would have future opportunities to address his attendance issues, Supervisor terminated his employment to get rid of him. On appeal, among other things, the Agency reiterates its stated reasons for the alleged management actions. The Agency asserts that Complainant misconstrued the facts with respect to his FMLA arguments. The Agency asserts that the Commission does not have jurisdiction to enforce FMLA laws, and evidence of FMLA violations, even if assumed to be factual, are not evidence of discrimination prohibited by Title VII. ANALYSIS AND FINDINGS Having reviewed the 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 disparate treatment as alleged. The Commission has held that an employer is not barred from imposing discipline or terminating an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and is consistent with business necessity. See EEOC 5 2021003281 Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 at Question 36 (Oct. 17, 2002). In making this finding, we note that Complainant has not offered any substantive arguments as to why the Agency erred in finding no discrimination or cited to evidence that he believes substantiates his allegations. As we see no independent basis for finding in favor of Complainant, 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 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). 6 2021003281 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 August 15, 2022 Date