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

Equal Employment Opportunity Commission

Mar 14, 2023

Appeal No. 2021003651 (E.E.O.C. Mar. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deon C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003651 Agency No. 1K-204-0012-20 DECISION On June 1, 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 30, 2021, 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., 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency’s Washington Network Distribution Center in Capitol Heights, Maryland. On September 10, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age, disability (mental and physical), and reprisal for prior protected EEO activity when: 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. 2021003651 2 1. On July 2, 2020, Complainant was issued a 7-Day Suspension. 2. On dates to be specified, management refused to recognize Complainant’s modified job assignment and sent him home. 3. On August 12, 2020, and other dates to be specified Complainant was denied overtime. 4. On dates to be specified, Complainant was forced to work outside of his medical restrictions. 5. On dates to be specified, management made changes to Complainant’s time sheet. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. OWCP Claim: Allegations 2 and 4 The record establishes that on December 8, 2018, Complainant experienced atypical chest pain and stress while he was at work. An ambulance was called, and he was taken to the hospital. Complainant’s doctors determined that he had experienced a heart attack. On January 17, 2019, the Agency made Complainant an Offer of Modified Assignment, which he accepted. The record contains a copy of the Offer of Modified Assignment, it shows that Complainant’s work injury claim was accepted by the Department of Labor’s Office of Workers’ Compensation Program (OWCP) and filed under OWCP Case No. 034003782. Complainant alleged that Manager forced him to complete tasks that were outside of his restrictions frequently. Complainant stated that on July 22, 2020, Manager informed him that his modified job assignment had been “turned down” by the Department of Labor and was “invalid.” Complainant described that Manager advised him to apply for reasonable accommodation. However, Complainant refused to apply for reasonable accommodation because he believed that Manager was trying to “reverse” his modified job assignment “illegally.” Complainant stated that subsequently, on July 23, 2020, a machine stopped working while he was heading to lunch. Complainant described that there was a belt where the problem appeared to be, so he pointed it out to Acting Supervisor. Complainant stated that Acting Supervisor climbed a ladder to get closer to the belt, but he did not, because his modified job assignment restricted him from climbing. Complainant stated that when Manager came over to help, she asked him several times, “what are they doing up there?” Complainant ignored her initially, and but finally replied, “I don’t know.” According to Complainant, Manager responded, “Go home, I don’t need you here,” so he went home as directed. 2021003651 3 In response, Manager testified that she received documentation from Complainant’s previous supervisor regarding his modified job assignment. However, she stated that Complainant did not have a valid OWCP claim because she received a doctor’s note from his physician stating that he was medically cleared to return to work beginning May 23, 2019, and the Injury Compensation Department tried to get current medical records from Complainant, but he ignored their request. Manager stated further that she received a Duty Status Report from OWCP, declaring that Complainant did not have a valid OWCP claim. She testified that she attempted to provide Complainant with the necessary paperwork to apply for reasonable accommodation, but he refused to and would not comply. Disparate Treatment: Allegations 1, 3, and 5 Complainant described that even though he completed regular duties and was available to work overtime, management subjected him to disparate treatment. Specifically, he was the only employee whose overtime requests were denied by management. In addition, he alleged that management made changes to his time sheet and falsified his assignment sheets to “make it seem like a regular employee was doing [his] work.” Furthermore, he alleged that management disciplined him unfairly by suspending him for 7 days. Supervisor testified that he never made changes to Complainant’s time sheet or denied Complainant overtime. Supervisor admitted that he prepared the overtime schedule. However, he clarified that the employees were scheduled for overtime only if they were on the Overtime Desired List (ODL). Supervisor stated that Complainant never approached him to inquire about overtime, and when a union representative informed him of Complainant’s allegations, he informed the union representative that Complainant failed to sign the ODL. Supervisor testified that he made the decision to issue Complainant a 7-Day Suspension. Supervisor stated that on June 19, 2020, the Acting Supervisor reported that he instructed Complainant to keep his radio on, be in his assigned work area, and to turn in his assignment sheet. However, Complainant did not comply. Supervisor testified that over the next two weeks, he personally observed that Complainant was off his job assignment without authorization. Supervisor stated that on the morning he decided to issue the 7-Day Suspension, he found Complainant asleep in the cafeteria with his shoes off and his radio off. Supervisor testified that Complainant’s age, disability and prior EEO activity were not factors in his decision to issue the 7-Day Suspension, he clarified that Complainant was suspended for improper conduct and failure to follow instructions. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 2021003651 4 In the final decision (FAD) issued on April 30, 2021, the Agency determined that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed the Agency’s decision to the Commission and submitted a statement with his appeal. 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”). Collateral Attack: Claims 2 and 4 A claim that can be characterized as a collateral attack if, by definition, it involves a challenge to another forum’s adjudicatory proceedings, such as the workers’ compensation process, the negotiated grievance process, state or federal litigation. See Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15, 1994). In the instant case, Complainant refused to apply for reasonable accommodation following his work injury. Instead, his work injury claim was processed by the OWCP. This Commission has generally held that complaints involving other administrative proceedings, including those involving the OWCP and its related processes, do not state a claim within the meaning of its regulations. See 29 C.F.R. § 1614.107(a)(1), Hogan v. Dep't of the Army, EEOC Request No. 05940407 (Sept. 29, 1994). Our rejection of such claims includes cases like this one, where the claim of discrimination is based on the Agency's actions (i.e., the Agency’s alleged mishandling of a modified job assignment that was processed under OWCP Case No. 034003782). See Schneider v. U.S. Postal Serv., EEOC Request No. 05A01065 (Aug. 15, 2002) (rejecting complainant's claim that the Agency's delay in processing her OWCP paperwork constituted harassment); Bell v. Dep't of Transportation, EEOC Appeal No. 01991806 (Jan. 11, 2001) (dismissing a discrimination complaint alleging that the agency submitted inaccurate and incomplete information to the Department of Labor while processing the complainant's OWCP claim). Like Bell and Hogan, we find the proper forum for Complainant to have raised his allegation that the Agency refused to recognize his modified job assignment was with the OWCP. 2021003651 5 Disparate Treatment: Claims 1, 3, and 5 A claim of disparate treatment is examined under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Here, management articulated legitimate, non-discriminatory reasons for its actions. With respect to claim 1, Supervisor testified that he made the decision to issue Complainant a 7-Day Suspension because Complainant engaged in improper conduct and failed to follow instructions. Supervisor explained that Complainant was instructed to keep his radio on, be in his assigned work area, and to turn in his assignment sheet. However, Acting Supervisor reported Complainant did not comply. Supervisor testified that he personally observed that Complainant was off his job assignment without authorization over a period of 2 weeks, and on the morning he decided to issue the 7-Day Suspension, he found Complainant asleep in the cafeteria with his shoes off and his radio off. With respect to claims 3 and 5, Supervisor testified that he never made changes to Complainant’s time sheet or denied Complainant overtime. Supervisor stated that employees who signed the Overtime Desired List were allowed to work overtime, and Complainant failed to sign the list. Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare- Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007). 2021003651 6 Here, Complainant failed to rebut the Agency’s legitimate, non-discriminatory reasons for its actions. Apart from his own assertions, Complainant failed to present affidavits, declarations, witness statements or documents which contradict or undercut the explanations provided by Manager and Supervisor. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision of Claims 1, 3, and 5 is affirmed. Claims 2 and 4 are dismissed for failure to state a claim. 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. 2021003651 7 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. 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 14, 2023 Date