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

Equal Employment Opportunity Commission

Mar 15, 2023

Appeal No. 2021003578 (E.E.O.C. Mar. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ian S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003578 Hearing No. 480-2021-00007X Agency No. 1F-927-0080-20 DECISION On May 27, 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 28, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronic Technician, PS-11 at the Agency’s Processing and Distribution Center in Santa Ana, California. On July 16, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when: 1. On May 14, 2020, Complainant’s request for 40 hours of sick leave was changed to 40 hours of annual leave. 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. 2021003578 2 2. On May 17, 2020, Complainant was sent home in a leave without pay status. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. On March 22, 2020, Complainant emailed the Agency’s Maintenance Technical Support Center (MTSC) to inform management that he would be absent from work due to the Covid-19 pandemic. Complainant requested “sick leave from today until further notice” for his “own safety and health,” but also maintained that he was “willing to work remotely from home.” The MTSC Coordinator replied to Complainant’s email the same day and informed Complainant that his leave was entered into an electronic database. The MTSC Coordinator instructed Complainant to call in on the days that he would not be in at work and informed him that documentation would be required for absences in excess of 3 days. On April 22, 2020, the Engineering Analyst emailed Complainant because he had been absent from work for over 30 days to remind him that he was expected to call in as instructed and explained the requirements for sick leave. The Engineering Analyst informed Complainant that because he was on sick leave for an extended period, he had to provide medical documentation to support his continued incapacity for work. She also explained that the Employee Labor Manual (ELM) 513.365 states that “if acceptable substantiation of incapacitation is not furnished, the absence may be charged to annual leave, Leave Without Pay (LWOP) or Absent Without Leave (AWOL).” In an April 23, 2020 reply email, Complainant asked the Engineering Analyst what consequences does “management have planned for me when I return to work without medical documentation?” On April 24, 2020, the Engineering Analyst reiterated that medical documentation was required for sick leave. She also informed Complainant that he would have to submit documentation that demonstrated his capacity to perform the functions of his job when he returned to work. On April 29, 2020, Complainant emailed the Maintenance Specialist, stating that the Engineering Analyst and MTSC Management had improperly used the ELM to threaten and harass him. He then stated that on March 22, 2020, he asked to work from home “as a reasonable accommodation due to the Covid-19 pandemic.” He added that “the world has been suffering and being quarantined . . . especially [people] 65 years of age and older2.” On May 14, 2020, the Engineering Analyst denied Complainant’s request for 40 hours of sick leave because Complainant failed to submit medical documentation to support that he was too incapacitated to work. The Engineering Analyst stated that she accounted for Complainant’s absence by charging him with annual leave instead of LWOP, because she did not want to cause any financial hardship. Complainant subsequently contested the Engineering Analyst’s decision to charge him with annual leave. 2 Complainant was especially concerned because he was over 65 years old. 2021003578 3 The Engineering Analyst again informed Complainant that she could not authorize sick leave without medical documentation and advised him that she could charge him with LWOP instead of annual leave. On May 17, 2020, Complainant returned to work without medical documentation demonstrating that he had been cleared to work. The Engineering Analyst instructed him to go home and placed him on LWOP. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant submitted a brief in support of his appeal expressing her disagreement with the Agency’s finding. 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-110), at Chap. 9, § VI.B. (as revised, August 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. The AJ found that Complainant failed to rebut the Agency’s articulated legitimate non- discriminatory reasons for its actions. 2021003578 4 The AJ found that regarding claim 1, management articulated that Complainant’s requested sick leave was changed to annual leave because he did not submit documentation to verify that he was sick. Because Complainant admitted that he was not sick, the AJ found that Complainant affirmed management’s reasons for denying his sick leave request. Regarding claim 2, the AJ found management articulated that Complainant was sent home on May 17th because he failed to submit documentation that supported that he was fit to return to work. The AJ indicated that it was reasonable for the Agency to require verification of fitness for duty after Complainant was on extended leave related to Covid-19. Because Complainant consulted a nurse after he was sent home, the AJ determined that Complainant’s subsequent visit to the nurse supported the Agency’s articulated reason. The AJ reviewed the record and found that there was nothing that showed that management’s actions were motivated by Complainant’s prior EEO activity. Complainant did not refer to reprisal-based comments or conduct. And Complainant did not point to any similarly situated comparators. Lastly, the AJ noted that Complainant argued that on March 22, 2020, he asked to work from home as a reasonable accommodation. The AJ determined that the Agency was not required to provide reasonable accommodation based on the instant complaint because Complainant did not make a disability or religious based claim. We agree with the AJ that Complainant did not raise religion or disability as a basis in his formal complaint or during counseling and in his March 22, 2020, email he stated that he would be absent from work due to the Covid-19 pandemic, not due to religion or disability. Furthermore, when Complainant requested telework his March 22, 2020 email he wrote, I am “willing to work remotely from home,” it is illogical for management to interpret this statement as a request for a reasonable accommodation. Furthermore, there is no evidence in the record to support a finding that management ever received anything that could be interpreted as a request for a reasonable accommodation. CONCLUSION After a review of the record in its entirety, including consideration of the statement submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final order, because the AJ’s issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. 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. 2021003578 5 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). 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. 2021003578 6 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 15, 2023 Date