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

Equal Employment Opportunity Commission

Aug 15, 2022

Appeal No. 2021003532 (E.E.O.C. Aug. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hang R,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021003532 Hearing No. 420-2021-00087X Agency No. 4G-350-0072-20 DECISION On May 12, 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 8, 2021, final order concerning her 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales Services/Distribution Associate, 06/O, at the Agency’s Post Office in Fort Payne, Alabama. 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. 2 2021003532 Complainant had engaged in prior EEO activity, having filed several EEO complaints. Report of Investigation (ROI) at 63 and 89. Complainant had been off work on a claimed medical leave for several months. ROI at 220-21. In such a situation, the Agency required that employees periodically provide medical documentation to confirm their continued need for leave. Complainant had not provided the required documentation. ROI at 26-7. As a result, the Supervisor, Customer Service, Complainant’s first-line supervisor (Supervisor), instructed Complainant to come in or telephone the office to discuss the matter. When Complainant repeatedly refused to follow her instructions, Supervisor issued to Complainant (and mailed to her) a 7-day suspension on December 12, 2019; and a 14-day suspension on or about February 14, 2020, (also mailed to Complainant). ROI at 91 and 211. On March 22, 2020, Complainant submitted to the Agency’s District Reasonable Accommodation Committee (DRAC) a request for reasonable accommodation. Complainant requested that “the agency continue to allow me on extended Leave Without Pay. I am also willing to consider offers of reassignment to a vacant position, at the same agency and commuting area, at the same grade/pay level and tenure, for which I am qualified and medically able to perform.” ROI at 222. In Complainant’s DRAC submission, she stated that she was unable to perform the essential functions of her position with or without accommodation. ROI at 120. The DRAC reviewed Complainant’s situation in light of her stated disability.2 As part of its review, the DRAC sought information of Complainant’s abilities and limitations. This included obtaining information from Complainant and from Complainant’s treating health care provider. ROI at 178. Complainant’s health care provider confirmed that Complainant was completely restricted from any type of work. Specifically, the provider stated: “Patient lacks capacity to function in any capacity in a work environment. Patient lacks concentration, persistence, and pace to safely [work] in the work environment in any capacity.” ROI at 226. On June 8, 2020, the DRAC met with Complainant via telephone to discuss her situation in more detail. ROI at 123. Based on Complainant’s complete restriction from working in any way, the DRAC agreed that there were no reasonable accommodations that would allow Complainant to perform the essential functions of her position; nor any vacant funded position in which she could perform the essential functions of the job with or without accommodation.3 ROI at 124. 2 Complainant’s disabling conditions include Irritable Bowel Syndrome (IBS); Traumatic Brain Injury (TBI); Concussion & Post- Concussion Syndrome; Depression; Anxiety; Recurrent Headaches; Memory Loss; Sleep Disturbance; Achilles Tendon Injury; Hypoglycemia; Post Traumatic Stress Disorder (PTSD); kidney issues; and back/neck/ankle/shoulder/right arm conditions 3 Complainant’s job duty requirements include walking, bending, hand coordination, working above the shoulder loading and unloading equipment to and from the dock lift, moving rolling equipment, moving Gaylord boxes with pallet lift, distribution of letters, flats and packages, accountable mail, retail window, boxing mail in the box section, customer service while on the retail window, financial accountability and other duties as assigned. 3 2021003532 On February 19, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (White), sex (female), color (White), disability (physical-multiple), age (DOB September 4, 1970), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when: 1. On June 14, 2019, Complainant was issued a letter of warning (LOW); 2. On December 23, 2019, Complainant was issued a 7-day suspension, for failing to contact her supervisor regarding her absenteeism; 3. On February 14, 2020, Complainant was issued a 14-day suspension, again for failing to contact her supervisor regarding her absenteeism; and 4. On June 18, 2020, the agency failed to provide reasonable accommodations, even though Complainant’s physician had completely restricted her from work of any kind. In accordance with 29 C. F.R. § 1614.109(b), the Agency dismissed claim 1 for untimeliness pursuant to 29 C.F.R. § 1614.105(a)(1). The LOW issuance occurred on June 14, 2019, some seven months (213 days) prior to Complainant’s initial EEO contact on or about January 13, 2020, well after the 45-day statutory limit. Complainant later challenged the dismissal of the claim. We note that 29 C.F.R. §1614.105(a)(2) states that the Agency shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reason considered sufficient by the agency or the Commission. We find no such showing here. The record also shows that Complainant had previously filed multiple EEO complaints and was aware of the time limit requirements. We therefore AFFIRM the Agency’s dismissal of claim 1. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On March 10, 2021, the Agency filed a motion for summary judgment. On March 23, 2021, Complainant filed a response. On March 25, 2021, the Agency filed a reply. After reviewing all the submissions from both parties and the entire evidentiary record, the AJ assigned to the case concluded that there was sufficient information upon which to base a decision without a hearing. The AJ also determined that there were no material facts in dispute. The AJ found that the Agency had provided legitimate, non-discriminatory reasons for the challenged actions. 4 2021003532 Regarding Complainant’s harassment allegation, the Agency stated that she did not even work during the time period of the alleged incident, rendering a harassment claim moot. Regarding Complainant’s allegation that the Agency failed to provide reasonable accommodations, the Agency stated that Complainant was restricted from any work, in any capacity, leaving no reasonable accommodation possible. The Agency also stated that it has since accepted a disability retirement. The AJ issued a decision without a hearing on March 29, 2021. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contests the Agency’s final action. She reiterates her harassment allegations, and asserts, without evidence, that management discussed her information with other employees. Complainant alleges, without supporting evidence or basis, that having the Agency’s attorney representative on this case is a conflict of interest. According to Complainant, the representative had represented the Agency during her meeting with the DRAC; and she felt intimidated and upset. Complainant also alleges that someone had contacted her medical doctor without her permission or consent. According to Complainant, the doctor reminded them of the Health Information and Portability Act (HIPAA) laws and invited to their office immediately. Complainant did not provide evidence of any HIPAA violations. On appeal, the Agency reiterates its statements regarding Complainant’s harassment and other allegations. The Agency argues that Complainant’s harassment allegation fail because she incurred absenteeism, she was directed to address those absences, and she failed to do so. The Agency also argues that Complainant’s failure to accommodate claim fails because it is undisputed that her physician restricted her from working in any capacity, in any position. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 5 2021003532 110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Complainant also provided no evidence to substantiate the arguments she raised on appeal that include conflict of interest and disclosure of confidential information about her disability by management to other employees. Given that Complainant had access to the ROI concerning her complaint and the opportunity to develop the record significantly during the EEO investigation and discovery before the AJ, we find that summary judgment was appropriate in this case. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s 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 6 2021003532 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. 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. 7 2021003532 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 August 15, 2022 Date