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

Equal Employment Opportunity Commission

Feb 21, 2023

Appeal No. 2021005099 (E.E.O.C. Feb. 21, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edward R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021005099 Agency No. 1B-007-0008-21 DECISION 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 August 13, 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, we AFFIRM the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodian, PS-04, at the Agency’s DMDU Cantano Annex in Cantano, Puerto Rico. He was directly supervised by the Maintenance Operations Supervisor. Complainant has been diagnosed with major depression, which caused him difficulty with tolerating stress, crowded places, and relating to others. See Report of Investigation (ROI) at 00061. In February 2020, Complainant requested leave under the Family and Medical Leave Act (FMLA) “for treating his own serious mental health conditions” that were related to his service in the military. Id. at 00007. After he was approved for FMLA leave, Complainant “started using his FMLA leave intermittently as he needed it for treating his conditions.” Id. at 00008. 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. 2021005099 2 Complainant alleged that the Maintenance Operations Supervisor “starting harassing [him] not only for his duly authorize[d] absences but he began requesting information about the reasons for such and the nature of [his] health conditions.” Id. In July 2020, an employee at Complainant’s workplace tested positive for COVID-19. ROI at 00008. As Complainant was fearful that his duties as a Laborer Custodian would expose him to infected waste products, Complainant requested leave under the Families First Coronavirus Response Act (FFCRA) and remained on leave until late July 2020. Id. When he attempted to return to work, Maintenance Operations Supervisor allegedly sent him back home and told him that he needed a negative COVID-19 test result to return. Id. Complainant alleged that this requirement was discriminatory because “there were other employees who were on leave under the FFCRA and were not required to present such negative result.” Id. Complainant maintained that requirement “was a blatant act of harassment from [the Maintenance Operations Supervisor] against [Complainant] who was never sick nor even presented symptoms and whose leave was a precautionary one.” Id. After Complainant’s absences continued into late 2020, the Agency issued Complainant a Letter of Warning (LOW) on November 6, 2020, for “failure to be regular in attendance,” as he had been on leave without pay (LWOP) for approximately 200 hours between August 1, 2020, through October 31, 2020. See ROI at 00012-13. Four days after receiving the LOW, Complainant took 37.6 hours of leave between November 10, 2020, through December 8, 2020. Id. at 00014-15. On December 8, 2020, Complainant attempted to renew his request for FMLA leave; however, the Department of Labor ultimately denied his request and informed him that his leave beginning on December 8, 2020, would not be protected, as Complainant had “not met the FMLA’s 1,250- hours-worked requirement.” See ROI at 000125-126. On December 29, 2020, the Agency issued Complainant a suspension for “failure to be regular in attendance” between November 10, 2020, through December 8, 2020, as he had exceeded the Agency’s limit of three “non-FMLA non- scheduled absences in [90] days.” Id. at 00114-115. Complainant ultimately filed a formal EEO complaint on March 12, 2021, alleging that the Agency subjected him to discrimination and harassment based on disability (major depression and anxiety) and reprisal (for requesting FMLA leave for his medical condition) when: 1. On dates not specified around February to July 2020, his use of FMLA leave was questioned. 2. On July 26, 2020, he returned to work from self-quarantine and management questioned his use of FFCRA leave and instructed him to submit medical documentation stating that he did not have COVID-19. 3. On November 9, 2020, he was issued a LOW. 4. On December 29, 2020, he was issued a seven-day suspension. 2021005099 3 The Agency dismissed claims 1-3 and accepted claim 4 for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI 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) solely on claim 4. The Agency concluded that Complainant could not prevail on the merits of his complaint. In finding no discrimination, the Agency considered Complainant’s assertion that “his medical condition was a factor in being issued the [seven] day suspension because his medical condition was in fact the reason for his absences.” However, the Agency ultimately found that management did not act with discriminatory motive in suspending Complainant, as the probative record showed that Complainant had exceeded the Agency’s limit of three “non-FMLA non-scheduled absences in [90] days.” As Complainant failed to provide “any direct or indirect evidence establishing that management’s actions were motivated by his medical condition and/or protected activity” and merely speculated as to why the Agency’s articulated reasons were pretextual, the Agency concluded that Complainant could not prevail on the merits of his complaint. This appeal followed. Neither Complainant nor the Agency submitted contentions on 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 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”). As an initial matter, we note that Complainant failed to raise the dismissal of claims 1-3 on appeal. We have stated that, "[a]lthough the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal." EEO MD-110, at Chap. 9, § IV.A.3. Therefore, we shall focus this decision on the Agency’s final decision regarding claim 4. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco 2021005099 4 Construction Corp. v. Waters, 438 U.S. 567 (1978). 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, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 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 the personnel action at issue, 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); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Maintenance Operations Supervisor issued the Seven-Day Suspension. He averred that an “employee can have up to three unscheduled absences in a ninety-day period.” ROI at 00082. He indicated that Complainant exceeded the limit of non-FMLA unscheduled absences within 90 days. He also noted that he had unofficial talks and recommendations to get Complainant help including the Employee Assistance Program, but Complainant’s attendance did not improve. Id. Upon review, we find that the Agency provided a legitimate, nondiscriminatory reason for issuing the suspension. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant asserted that the Maintenance Operations Supervisor was constantly harassing him for leaving early or being absent and claimed that the absences at issue were protected by FMLA. ROI at 00063-64. We note that FMLA issues fall outside of the Commission's jurisdiction. See Butler v. U.S. Postal Serv., EEOC Appeal No. 0120111282 (June 8, 2011). The proper forum for Complainant to raise his allegations, that the Agency improperly processed his leave request, is with the Department of Labor. Therefore, based on our review of the record as a whole and arguments not specifically addressed herein, we find that Complainant failed to show that he was subjected to discrimination based on disability and in reprisal as alleged. 2021005099 5 CONCLUSION Based on the foregoing, 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). 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). 2021005099 6 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 February 21, 2023 Date