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

Equal Employment Opportunity Commission

Mar 28, 2023

Appeal No. 2022000244 (E.E.O.C. Mar. 28, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edwardo V.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000244 Hearing No. 430-2020-00428X Agency No. 4K-230-0121-19 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated September 15, 2021, finding no discrimination regarding his 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. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, QCC- 01, at the Agency’s Debree Station in Norfolk, Virginia. 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. 2022000244 2 On July 26, 2019, Complainant filed his complaint alleging hostile work environment based on race (Caucasian), color (white), religion (Christian), sex (male), age (over 40), disability, and in reprisal for prior EEO activity when: 1. On March 29, 2019, he was removed from his bid route. 2. On dates to be specified, he was denied overtime. 3. On dates to be specified, he was denied reasonable accommodation when he was given a modified job offer that was not in accordance with his work restrictions. 4. On June 28, 2019, he became aware that his leave slip for June 13, 2019, was denied. 5. In approximately August 2019, a coworker harassed him about his medical condition and an accident he was involved in, and then approached him in a threatening manner. 6. On an unspecified date, there was an improper disclosure of his medical information.2 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 EEOC Administrative Judge (AJ). 29 C.F.R. § 1614.108(f). Complainant requested a hearing. The AJ issued a Notice of Intent to Issue Decision Without a Hearing in Favor of the Agency. The parties responded to the notice. The AJ issued a decision without holding a hearing, finding no discrimination. Regarding claims 1 and 3, Complainant indicated that on May 2, 2018, he had an on-the-job injury. As a result, Complainant sustained injuries on his left knee, shoulders, neck, and back plus headaches. As a Letter Carrier, Complainant was required to lift/carry up to 70 pounds up to eight hours per day (intermittently); stand and walk up to eight hours per day (continuously and intermittently); twist, pull/push, and reach above shoulder up to eight hours per day (intermittently); and kneel up to six hours per day (intermittently). In a Duty Status Report (CA-17), dated March 20, 2019, Complainant’s doctor stated that due to his May 2018 injury, Complainant was subjected to limitations, in part, lifting/carrying up to 40 pounds up to six hours per day; standing, walking, twisting, pulling/pushing, and reaching above shoulder for six hours per day; and no kneeling. On March 29, 2019, Complainant accepted a Modified Letter Carrier assignment to perform an auxiliary route, i.e., casing auxiliary route for 1 - 2 hours, and delivering auxiliary route for 2 -3 hours, within his medical restrictions. 2 In his complaint, Complainant also alleged that his union steward was not taking a proper approach to grievance matters. The Agency dismissed the subject claim for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), as it constituted a collateral attack on the grievance process. Complainant did not contest the dismissal on appeal so we shall not address such in this decision. Nevertheless, we see nothing improper about the Agency’s dismissal. 2022000244 3 Regarding claim 2, Complainant stated that after his May 2018 injury, his managers became more lenient in allowing him to work overtime because he needed additional time due to injury.3 The Agency overtime policy reveals that in order for Complainant to be eligible for the 12-hour desired overtime list, he needed to be able to work four additional hours on days he was already scheduled, and eight hours on a non-scheduled day. The Agency asserted it could not provide overtime to Complainant when he was not working an eight-hour day. Regarding claim 4, the record indicates that on June 13, 2019, Complainant submitted a Request for or Notification of Absence for sick leave from 15:25 to 17:25 on June 13, 2019, asking that he be charged sick leave (instead of LWOP (Leave Without Pay) - OWCP (Office of Workers’ Compensation Programs)) for any time not worked (for an eight-hour day) from June 13, 2019, forward until further notice. The Agency disapproved the request because since Complainant had been approved LWOP under his OWCP claim, he could not also claim sick leave at the same time. Regarding claims 5 and 6, in August 2019, Complainant was involved in an altercation with a coworker (C1) who purportedly made comments about Complainant’s medical matters and the May 2018 accident. Complainant indicated that C1 had “his facts wrong” and they were “baseless comments.” Complainant also indicated that C1’s “reaction was more mouthing” as C1 raised his hands towards [Complainant] in a threatening manner and another coworker who was nearby interceded and grabbed C1. Complainant stated that his steward, also a City-Carrier, a non-manager, purportedly disclosed his medical matters and his accident to C1. Complainant complained that the steward was not doing his job. Complainant indicated that after his altercation with C1, he told the steward, “See what you caused,” to which the steward “did not have a good reply.” Complainant did not indicate management disclosed his medical information to C1 or what specific medical information was disclosed by management, if any. The AJ noted that since Complainant was in a modified job for quite some time since his May 2018 accident, his coworkers, including C1, would have learned of Complainant’s accident and medical matters without any disclosure by the Agency. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. On appeal, Complainant indicates that his case should be remanded for a hearing and argues that his March 29, 2019, modified job offer was improper. 3 The AJ noted that any alleged overtime denials that predated Complainant’s May 2018 injury were untimely since he contacted an EEO Counselor on May 22, 2019. Complainant does not dispute this on appeal. 2022000244 4 ANALYSIS AND FINDINGS Standard of Review The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that Complainant was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community 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’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 2022000244 5 Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. 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. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, 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). In the instant case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined, and we agree, that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency stated that Complainant was removed from his bid route and provided with a Modified Letter Carrier assignment to perform an auxiliary route in order to accommodate his limitations. Specifically, his Duty Status Report (CA-17), dated March 20, 2019, indicated that Complainant was unable to perform the essential duties of his bid position as a Letter Carrier. Regarding his overtime claim, the Agency indicated that Complainant was not eligible to work overtime based on the 12-hour overtime desired list because he did not work eight hours. Regarding his sick leave request, the Agency indicated that Complainant could not claim or request sick leave for the already approved LWOP hours under his OWCP claim. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as alleged. Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.4 See 29 C.F.R. § 1630. In order to establish that a complainant was denied a reasonable accommodation, the complainant must show that: (1) he or she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he or she is a qualified individual pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See Enforcement 4 The Rehabilitation Act was amended so that the standards under Title I of the Americans with Disabilities Act (ADA) would be applied to employment discrimination cases under the Rehabilitation Act. 2022000244 6 Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 at question 9 (as revised Oct. 17, 2002). Under the Commission’s regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.2(o), (p). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. The record reveals that after his May 2018 injury, Complainant was not able to perform the essential duties of his Letter Carrier position. Specifically, his Duty Status Report (CA-17), dated March 20, 2019, reveals that Complainant was restricted, in part, lifting/carrying up to 40 pounds up to six hours per day; no kneeling; and standing, walking, twisting, pulling/pushing, and reaching above shoulder for six hours per day. We find that the Agency accommodated Complainant by providing a Modified Letter Carrier assignment, dated March 29, 2019, within his restrictions, i.e., casing auxiliary route for 1 - 2 hours, and delivering auxiliary route for 2 - 3 hours, as he was unable to perform his position duties. Upon review, we find that Complainant failed to show that he was denied a reasonable accommodation. Medical Confidentiality Regarding medical information disclosure, the Commission’s regulations implementing the Rehabilitation Act provide for the confidentiality of medical records. Specifically, 29 C.F.R. § 1630.14(c)(1) provides, in pertinent part, that: “Information obtained . . . regarding the medical condition or history of any employee shall... be treated as a confidential medical record.” An agency’s obligation to keep certain medical information of its employees confidential applies to all employees regardless of disability status. This requirement applies to confidential medical information obtained from “any employee,” and is not limited to individuals with disabilities. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). Although not all medically related information falls within this provision, documentation or information of an individual’s diagnosis is without question medical information that must be treated as confidential except in those circumstances described in 29 C.F.R. Part 1630. See id.; Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720080017 (Dec. 12, 2009). The limited exceptions to the confidentiality requirements are: (1) supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; (2) first aid and safety personnel may be told if the disability might require emergency treatment; and (3) government officials investigating compliance with the ADA must be given relevant information on request. See EEOC Enforcement Guidance on Disability- Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 27, 2000). If an agency discloses medical information pertaining to a complainant in a manner that did not conform with this regulation, then its act of dissemination would constitute a violation of the Rehabilitation Act. 2022000244 7 Here, Complainant did not identify any specific medical information that C1 purportedly disclosed. In the instant case, Complainant did not indicate his supervisors/managers disclosed his medical information or even if they did, he provided no information about what medical information they purportedly disclosed. Thus, we find that Complainant has failed to show there were any improper disclosures of Complainant’s medical information by the Agency. Harassment To establish a claim of harassment, Complainant must establish that: (1) Complainant belongs to a statutorily protected class; (2) Complainant 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 Complainant’s 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Service, Inc., 23 U.S. 75 (1998). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Therefore, 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 his 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Considering all the events, we find that Complainant failed to show for claims 1 - 4 and 6 that the alleged harassment occurred and/or was related to any protected basis of discrimination. At most, for purposes of a decision without a hearing, we will assume that Complainant’s coworker made the comments at issue in claim 5. The incident in claim 5, by itself, however, is insufficiently severe or pervasive to constitute a discriminatory hostile work environment. Based on a thorough review of the record, considering all statements submitted on appeal, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 2022000244 8 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). 2022000244 9 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 28, 2023 Date