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

Equal Employment Opportunity Commission

Mar 9, 2023

Appeal No. 2022000810 (E.E.O.C. Mar. 9, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dwight F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000810 Hearing No. 560-2020-00091X Agency No. 1G-731-0012-18 DECISION On November 22, 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 October 20, 2021 final order 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, level 6, at the Agency’s Processing & Distribution Center in Oklahoma City, Oklahoma. In November 2016, Complainant experienced an on-the-job injury to his cervical spine and shoulders. As a result, he could no longer perform the duty of sorting mail on the letter-sorting machine. Complainant filed a claim with the Office of Workers’ Compensation Programs (OWCP), which was accepted on May 10, 2017. 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. 2022000810 2 Complainant then accepted a modified job assignment allowing duties of “Piking letters for first class mail” for four hours only and “Operating Shredder Machine only, First Class Letters only” for four hours only. Subsequently, Complainant’s January 2018 medical documentation restricted him to lifting no more than 20 pounds, no reaching above his shoulder, and no bending or twisting more than two hours per day. The January 2018 medical documentation stated that he could work eight hours per day. On November 16, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Asian), sex (male), color (Yellow), disability (on-the-job injury/spine and left shoulder), age (58), and reprisal for prior protected EEO activity (assisting other EEO complainants) when: 1. On March 18 through March 31, 2018, management denied Complainant’s request for sick leave and charged his leave to leave without pay (LWOP). 2. Since March 22, 2018, the Plant Manager denied Complainant’s request to provide him with eight hours of work although Complainant was released by his doctor to return to work, which forced Complainant to unwillingly use four hours of LWOP each day. 3. On March 31, 2018, management forced Complainant to take an early retirement. 4. About April 11, 2018, management threatened Complainant with charging him with absence without official leave (AWOL). 5. About April 17, 2018, Complainant learned that management withdrew funds from his thrift savings plan (TSP) without his authorization. 6. On May 9, 2018, following Complainant’s retirement, the Agency subjected Complainant to an investigative interview. 7. On August 7, 2018, Complainant learned that the Agency had improperly reduced his sick leave and annual leave balances. 8. Complainant’s OWCP form CA-7 was not properly submitted for payment. Complainant later amended the complaint to allege that the Agency discriminated against him when: 9. On July 2, 2019, a payroll representative refused to assist Complainant. After an extended procedural history,2 the Agency accepted Complainant’s complaint for EEO investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. 2 Initially the Agency procedurally dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a). Complainant appealed. In EEOC Appeal No. 2019002696, the Commission reversed the Agency’s procedural dismissal and remanded the matter for further processing from the point it ceased - an EEO investigation. 2022000810 3 Complainant requested a hearing. However, on October 7, 2021, the assigned AJ issued a summary judgment decision finding no discriminatory disparate treatment or harassment. Specifically, the AJ stated, “I conclude that all of the actions taken in this case, taken together, do not constitute harassment . . . nor has Complainant established that these actions were taken due to his protected status.” The AJ found as follows: As of March 18, 2018, Complainant had a negative sick leave balance and, per management, no sick leave means LWOP is automatically applied. There was no showing that OWCP approved Complainant for an eight-hour workday so the Agency could not allow him to return to work beyond four hours per day and OWCP paid Complainant for the remaining four hours each day. Complainant, at his own acknowledgment, was unable to work between March 18 and March 31, 2018. On March 31, 2018, Complainant submitted a retirement application and local management was unaware that Complainant retired as he remained on the work roster until May 2018. Because local management was unaware of Complainant’s retirement, they thought Complainant had been absent without explanation the prior 80 hours, so a standard absence inquiry was sent to him. Complainant was not charged with AWOL and did not attend an investigative inquiry once management learned he retired. In February 2018, the Agency approved Complainant’s October 2017 request to buy back his sick leave from OWCP and in late March/early April 2018 Complainant’s 400+ hours of sick leave were restored, but it is a long process. The OWCP buy-back program impacted Complainant’s LWOP, taxes, TSP and like matters and any excess amounts were retrieved. When an employee uses more than 80 hours of LWOP, their leave earned is reduced automatically. The Agency payroll representative did not know Complainant or his protected classes. The Agency subsequently issued a final order adopting the AJ’s conclusions that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed. 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”). 2022000810 4 Harassment To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (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; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race, national origin, color, sex, age, disability or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, in November 2016, Complainant experienced an on-the-job injury which restricted duties he could perform at work. By March 18, 2018, Complainant had a negative sick leave balance, so LWOP was automatically applied to his payroll. Management stated there was no showing that OWCP approved Complainant for an eight-hour workday so the Agency could not allow him to return to work beyond four hours per day and OWCP paid Complainant for the remaining four hours each day. Complainant was unable to work between March 18, 2018 and March 31, 2018 and, on March 31, 2018, he submitted a retirement application. Local management was unaware that Complainant retired as he remained on the work roster until May 2018 and, consequently, they thought he was absent without explanation the prior 80 hours and issued him a standard absence inquiry. After management learned that Complainant retired, he was not charged with AWOL and did not attend an investigative inquiry. In February 2018, the Agency approved an October 2017 request from Complainant to buy back his sick leave from OWCP. In late March/early April 2018, after a long process, Complainant’s 400+ hours of sick leave were restored. The OWCP buy-back program impacted Complainant’s other benefits, such as LWOP and TSP. Complainant’s leave was reduced automatically after he used more than 80 hours of LWOP. Finally, the Agency payroll representative who Complainant states would not assist him did not know Complainant or his protected classes. Based on the evidence of record, we find that Complainant failed to prove, by a preponderance of the evidence, that the Agency’s actions were based on discriminatory or retaliatory motives. 2022000810 5 Constructive Discharge Complainant also alleged that based on the ongoing discriminatory harassment, he was forced to retire early from the Agency. With this allegation, Complainant is raising a claim of constructive discharge. The central question in a constructive discharge claim is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. See Complainant v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Complainant v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Here, we conclude that a finding of constructive discharge is precluded by our conclusion, discussed above, that Complainant was not subjected to a discriminatory hostile work environment. See Terrence F. v. Nat'l Aeronautics and Space Admin., EEOC Appeal No. 2021001419 (Nov. 22, 2021). Complainant's subjective assertion that Agency management subjected him to discriminatory harassment, which is unsupported by any evidence in the record, is not enough to meet the objective standard required to establish a constructive discharge. See Isabel F. v. Dep't of Labor, EEOC Appeal No. 2021002656 (Aug. 8, 2022); James v. Dep't of the Navy, EEOC Appeal No. 01842127 (April 1, 1986). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final Agency decision concluding no discrimination or unlawful retaliation was proven. 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. 2022000810 6 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 (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. 2022000810 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 9, 2023 Date