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

Equal Employment Opportunity Commission

Jan 5, 2023

Appeal No. 2023000071 (E.E.O.C. Jan. 5, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Johnson P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023000071 Agency No. 1C631008222 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's September 16, 2022 dismissal of his complaint alleging unlawful 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., and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Parcel Post Dist-Machine Clerk, PS-06, at the Agency’s Greater Newark P&DC facility in Kearny New Jersey. On March 25, 2022, Complainant filed a Formal EEO Complaint alleging that the Agency subjected him to discrimination on the bases of disability and age (62) when: 1. On September 17, 2021, he was sent to work at Teterboro Station; and 2. On November 20 and December 14, 2021, management requested that he perform work that went against his limitation status. 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. 2023000071 2 In the record, Complainant clarifies that for Claim 1, his Supervisor (age 50) arranged the transfer without Complainant’s permission or regard for his seniority, and that the transfer added an additional hour to Complainant’s daily commute for a period of 11 weeks. Complainant also clarifies, with respect to Claim 2, that he is alleging a hostile work environment and denial of reasonable accommodation. On April 7, 2022, the Agency issued a “Notice of Partial Acceptance/Dismissal of Formal EEO Complaint” to Complainant, accepting Claim 2 for investigation, but dismissing Claim 1 as untimely raised, reasoning Complainant did not contact an EEO Counselor about the events in Claim 1 within the 45-day time frame provided in EEOC regulations at 29 C.F.R. § 1614.107(a)(2) and § 1614.105(a)(1). On September 16, 2022, the Agency dismissed Claim 2 on the grounds that Complainant failed to respond to an EEO Investigator’s request for information pursuant to C.F.R. §§ 1614.107(a)(7), (g). The instant appeal followed. ANALYSIS AND FINDINGS Untimely EEO Contact - Claim 1 In relevant part, 29 C.F.R. §1614.107(a)(2) provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. Under §1614.105(a)(1), an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. It is undisputed that Complainant initiated EEO contact on December 19, 2021, which is more than 45 days after the discriminatory event alleged in Claim 1, which occurred on September 17, 2021. Complainant offers no explanation or evidence on appeal to warrant an extension or waiver of the time limit. Failure to Cooperate - Claim 2 The regulation set forth at 29 C.F.R. § 1614.107(a)(7) provides that an agency may dismiss a complaint for failure to cooperate, or alternatively, adjudicate the complaint if sufficient information for that purpose is available. The regulation is applicable under the following circumstances: (1) the agency has provided the complainant with a written request to provide relevant information or to otherwise proceed with the complaint; (2) the request included a notice of the proposed dismissal for failure to respond within 15 days of receipt of the request; and (3) the complainant either fails to respond to the request within 15 days of receipt or the complainant's response does not address the agency's request. 2023000071 3 The Agency established prongs 1 and 2, as the EEO Investigator emailed Complainant on April 15 and 28 requesting that he complete and submit an affidavit by April 30, 2022, or risk having his complaint dismissed for failure to cooperate (or words to that effect). The EEO Investigator states in the Investigative Summary that Complainant failed to provide the affidavit and includes copies of the emails and read receipts. However, on appeal, Complainant provided a completed copy the affidavit, with each page signed and dated April 28, 2022. Complainant also provided a scanned printout of an email with the subject “Affidavit” sent on April 28, 2022. The email sender contains Complainant’s name and email address of record, and the recipient is the EEO Investigator’s name and email address that he provided to Complainant. The email also indicates that Complainant included 15 attachments. Some of thumbnail images of the pdf., viewable on the printed email, reveal pages from the completed, signed affidavit.2 The Agency does not challenge Complainant’s proffered evidence. Harassment/Hostile Work Environment Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that they have been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If the complainant cannot establish that they are aggrieved, the agency shall dismiss their complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We note that when defining the issues raised in a complaint, the Agency should also review the EEO Counselor's report. See Jagdhane v. Gen. Serv. Admin., EEOC Appeal No. 0120110457 (Jan. 27, 2012). In this case, Complainant stated in the Counselor's Report and reiterated in his appellate brief that Supervisor’s actions created a hostile work environment. By Complainant’s account, on December 14, 2021, while attempting to assign Complainant work outside his medical restrictions, Supervisor allegedly humiliated him in front of his colleagues by having him escorted from the facility by police. 2 As with Complainant’s submissions to the Commission, it appears he scanned each page of the document separately and uploaded them as individual files. It is possible that combined size or amount of files prevented Complainant’s email from reaching the EEO Investigator. We strongly encourage Complainant to consolidate and optimize his pdf attachments before submitting them. 2023000071 4 Assuming events occurred as Complainant alleged, we find them sufficient to alter the conditions of his employment. See, e.g. Roderick P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120161268 (Mar. 23, 2018), Ferebee v. Dep’t of Homeland Sec., EEOC Appeal No. 0720100039 (Apr. 24, 2012). Denial of Reasonable Accommodation A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) (“EEOC Disability Guidance”). A request for reasonable accommodation does not have to be in writing and does not have to use the magic words "reasonable accommodation." Id., see also, Triplet-Graham v. United States Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24, 2006) (employee need only inform agency that he or she needs adjustment or change at work for reason related to a medical condition) When describing the events in Claim 2, Complainant alleges that Supervisor demanded that he lift heavy boxes and said she did not care about his medical restriction. He explained that he incurred an on-the-job injury requiring shoulder surgery years ago and lifting heavy boxes would cause him harm. While Complainant did not expressly state that he made a reasonable accommodation request and that it was denied, a fair reading of his allegations in Claim 2 make it evident that he was alleging a denial of accommodation for a shoulder impairment. EEOC Disability Guidance, see also, e.g., Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120140317 (Apr. 7, 2014) citing Robinson-Brooks v. United States Postal Serv., Appeal No. 0120120732 (Oct. 25, 2012) Accordingly, an investigation is required to determine whether Complainant was denied a reasonable accommodation. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is MODIFIED. The Agency’s dismissal of Claim 1 is AFFIRMED, and the Agency’s dismissal of Claim 2 is REVERSED. The Commission hereby REMANDS Claim 2 to the Agency for further processing in accordance with this Decision and the following Order. ORDER (E0618) The Agency is ordered resume processing Claim 2 in accordance with 29 C.F.R. § 1614.108 et seq. When investigating Claim 2, the Agency shall consider Claim 2 as a harassment allegation and as a denial of reasonable accommodation claim. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 2023000071 5 The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2023000071 6 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). 2023000071 7 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 January 5, 2023 Date