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

Equal Employment Opportunity Commission

Mar 7, 2023

Appeal No. 2023000832 (E.E.O.C. Mar. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beth T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2023000832 Agency No. 4G-730-0101-22 DECISION On November 17, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated October 17, 2022, dismissing her complaint of unlawful 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, we REVERSE the Agency’s final decision and REMAND the matter to the Agency for further processing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Fianna Hills Station in Fort Smith, Arkansas. For approximately 11 years, Complainant performed her duties subject to an eight-hour restriction due to an unspecified physical disability. Like all carriers at the station, Complainant began her workday at 7:00 a.m. In April 2022, the Agency asked Complainant to provide an update regarding her medical restrictions. After Complainant provided the requested update, the Agency changed her start time from 7:00 a.m. to 8:00 a.m. As a result of the change, Complainant indicated that she would have to work during the hottest part of the afternoon in temperatures up to 105 degrees Fahrenheit. 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. 2023000832 2 On September 30, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of disability (physical). In her formal complaint, Complainant specifically alleged that: Management changed working conditions start and end time as retaliation for having a medical [eight] hour work restriction and not being able to force to work overtime. Other carriers without restrictions (physical/disability) did not have their working time/conditions changed. See Complaint File at 18 The Agency identified the claim as discrimination on the basis of disability when on May 28, 2022, Complainant’s start time was changed from 7:00 a.m. to 8:00 a.m. The Agency then issued its final decision dismissing the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency emphasized that management had the prerogative to direct employees in the performance of their duties, which included the right to change their start times. Citing to Holmes v. U.S. Postal Serv., EEOC Appeal No 0120070656 (March 25, 2009) (affirming dismissal of claim, wherein complainant had alleged that the 45-minute change to his start time extended his commute and precluded him from having dinner with his family at 5:00 p.m. each night), the Agency reasoned that the change to Complainant’s start time did not present a harm or loss with respect to a term, condition, or privilege of employment. See also Anthony v. U.S. Postal Serv., EEOC Appeal 0120102068 (Aug. 20, 2010) (finding that a one-hour change to complainant’s start time did not render complainant aggrieved). Based on the case law, the Agency concluded that dismissal was warranted pursuant to 29 C.F.R § 1614.107(a)(1). This appeal followed. CONTENTIONS ON APPEAL Through her attorney, Complainant vehemently opposes the Agency’s decision to dismiss her complainant pursuant to 29 C.F.R § 1614.107(a)(1). In her appellate brief, Complainant argues that the Agency improperly relied on Holmes and Anthony. In so arguing, Complainant maintains that “these cases control the current appeal only to the extent that it could be found that Complainant has failed to allege - not failed to prove, but merely failed to allege - some sort of adverse harm.” She contends that unlike those cases, she did allege a specific harm, namely that the one-hour schedule change would require her to work in very hot summer temperatures. While Complainant acknowledges that the schedule change did not impose any financial losses on her, she argues that “it clearly is an unfavorable change which harmed the terms and conditions of her employment.” Furthermore, Complainant argues that she sufficiently alleged a viable claim of reprisal “by her complaining that her schedule was changed in retaliation for her asking for the medically-necessary accommodation of working no more than eight hours a day.” Complainant emphasizes that as a result of her protected EEO activity, she had her “schedule changed in an unfavorable way when other similarly-situated employees did not.” 2023000832 3 The Agency did not file any arguments in opposition to the appeal. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disability. 29 C.F.R. §§ 1614.103, 1614.106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). A complaint should not be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle him or her to relief. Cobb v. Dep’t of the Treas., EEOC Request No. 05970077 (Mar. 13, 1997). In determining whether a complaint states a claim, the proper inquiry is whether the alleged conduct would constitute an unlawful employment practice under EEO regulations. Id. Having reviewed the record, we find that the Agency erred in dismissing Complainant’s claim of disparate treatment. While we considered the Agency’s citation to Holmes, supra, we ultimately find that case to be distinguishable from the instant case. Unlike in Holmes, where the change to complainant’s start time merely inconvenienced him by preventing him from having dinner with his family at 5:00 p.m. each night, we find that Complainant here has alleged a specific harm. Indeed, she has repeatedly asserted that the change to her start time forced her to work in extreme temperatures, whereas carriers without disabilities were allowed to start work at the usual start time of 7:00 a.m., which allowed them to avoid extreme afternoon temperatures. Our review of Anthony, supra, similarly shows that complainant in that case also failed to allege a specific EEO harm that resulted from the agency’s decision to change her start time. Given these key distinctions, we conclude that Complainant has sufficiently stated a claim of disparate treatment. After a review of its final decision, the Commission finds that the Agency has addressed the merits of Complainant’s complaint without a proper investigation as required by the regulations. We find that the Agency’s articulated reason for the action in dispute, i.e., management had the prerogative to direct employees in the performance of their duties, including changing their start times, goes to the merits of Complainant’s complaint, and is irrelevant to the procedural issue of whether she has stated a justiciable claim under Title VII. See Osborne v. Dep’t of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). 2023000832 4 Furthermore, upon a fair reading of the record, we find that Complainant also alleged the basis of reprisal, even though she did not check the box on her formal complaint. Complainant specifically alleged that management changed her schedule “as retaliation for having a medical [eight] hour work restriction and not being able to force to work overtime,” whereas employees without medical restrictions did not have their schedules changed. When a complainant alleges reprisal for prior protected EEO activity, he or she need not show that the agency’s conduct affected a term, condition, or privilege of employment or constituted an “ultimate employment action” such as hiring, firing, demotion, denial of promotion or leave, or adverse pay decisions. Regarding Complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); See Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999); EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Here we agree with Complainant that had the Agency given her an unfavorable start time due to her need for reasonable accommodation based on her disability, such a change would constitute reprisal. CONCLUSION Based on the foregoing, we find that the Agency erred in dismissing the complaint for failure to state a claim. We shall therefore REVERSE the Agency’s final decision and REMAND the matter to the Agency for further processing in accordance with this decision and the Order below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. 2023000832 5 As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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. 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. 2023000832 6 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 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. 2023000832 7 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 March 7, 2023 Date