[Redacted], Ken E., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jun 29, 2022

Appeal No. 2021001070 (E.E.O.C. Jun. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ken E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021001070 Hearing No. 470-2019-00371X Agency No. 4C-450-0042-19 DECISION On November 25, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 27, 2020 final order 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a City Letter Carrier, M-04, at the Circleville Post Office in Circleville, Ohio. Complainant’s first-line supervisor was Supervisor, Customer Services (S1) and his second-line supervisor was the Postmaster (S2). Complainant stated that he was diagnosed with depression/anxiety over 20 years ago. Complainant indicated that his personal life is limited as a result of his medical condition because he does not like to leave his comfort zone when he has had an anxiety attack. Complainant added that he when he experiences an anxiety attack, his doctor advised him to leave work for the rest of the day or longer. On March 18, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (depression/anxiety) when, on December 21, 2018, he was issued a 14-Day Suspension. 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. 2021001070 2 Complainant’s wife had been hospitalized with cancer around June 28, 2018, and had passed away on August 4, 2018. On or around July 28, 2018, Complainant had exhausted his Family and Medical Leave Act (FMLA) leave for the year. Complainant continued to be absent through November 8, 2018, and incurred 70 days of unscheduled leave. Complainant’s psychologist sent Agency officials several letters in August, September, and October 2018, explaining that due to Complainant’s mental health condition and the loss of his wife, he had advised Complainant to extend his time off from work. In these letters, the psychologist stated the next date that he would reassess Complainant’s mental status. Complainant was issued a Letter of Warning for Unsatisfactory Attendance for unscheduled leave from July through September 2018 for more than 326 hours on October 5, 2018. On October 23, 2018, Complainant’s psychologist signed a letter stating that Complainant could return to work full-time without restriction on November 8, 2018. Complainant filed a grievance regarding the Letter of Warning, which was settled by the union and the Agency on October 24, 2018. The grievance settlement required Complainant to provide documentation to return to work and to do so no later than October 29, 2018. Complainant believed that his doctor’s note superseded the grievance settlement since it said he could return on November 8, 2018, and the Agency’s Nurse had not cleared Complainant for work. From November 1-6, 2018, Complainant did not report to work on his assigned days or provide leave request forms prior to being absent from work. Complainant returned to work on November 8, 2018. On November 29, 2018, Complainant submitted to S2 a leave slip requesting three days off. On December 7, 2018, Complainant was given a pre-disciplinary interview and on December 21, 2018, Complainant was issued a 14-day no time-off suspension for Unsatisfactory Attendance/Absent Without Leave. Complainant’s physician signed a letter on December 28, 2018, stating Complainant was unable to work from November 29 to December 1, 2018, due to his medical condition. Complainant filed a grievance related to the 14-Day Suspension. The grievance was resolved by reducing the suspension to a Seven-Day Suspension that would be expunged from his file after six months. In addition, management agreed to change the November 1-6, 2018 absences from AWOL to Leave Without Pay (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 AJ held a hearing and subsequently issued a decision in favor of the Agency. Initially, the AJ found S1 and Complainant’s psychologist to be credible witnesses. The AJ found Complainant to be a less credible witness, explaining Complainant was confrontational during cross-examination; contradicted his discovery responses; could not recall multiple events; and admitted his life’s circumstances since 2018 affected his memory. Due to the above reasons, the AJ concluded that Complainant’s testimony received less weight unless it was adverse to his own case or supported by documentary evidence. 2021001070 3 The AJ found S2 to be less credible than S1 and the psychologist, explaining there appeared to be frustration towards Complainant and that S2 had difficulty recalling certain events. However, the AJ found S2 was more credible than Complainant because she did not exhibit as much hostility or the same degree of memory failure as Complainant. Next, the AJ determined that Complainant failed to establish that that the Agency’s legitimate, nondiscriminatory reasons for issuing the 14-Day Suspension were pretext for discriminatory animus based on his disability. Agency officials issued the suspension because Complainant had accumulated six hours of unscheduled personal leave without pay (UPLWP), 16 hours of leave without pay (LWOP), and 40 hours of absence without leave (AWOL) from November 1, 2018 to December 1, 2018. Complainant argued that employees outside of his protected classes were treated better than he, that the Agency failed to issue progressive discipline, and that his absences were covered by a doctor’s letter. The AJ found that Complainant failed to identify a valid comparator whose relevant aspects of their employment situation were nearly identical. The AJ explained that at best, Complainant showed that a named comparator had absences due to personal reasons, with only one single absence not preapproved. Further, the AJ found that Complainant’s argument that the 14-Day Suspension ignored progressive discipline was not persuasive to demonstrate pretext, especially in the absence of a comparator. Finally, the AJ found Complainant failed to show by a preponderance of the evidence that S2’s belief that Complainant would return to work on November 1, 2018, was pretextual. S2 explained she believed that the October 24, 2018 grievance settlement regarding the Letter of Warning superseded the October 23, 2018 psychologist’s letter, especially since the settlement was agreed to by a union representative working on Complainant’s behalf. Further, the AJ determined that Complainant failed to provide medical documentation to support his leave request for November 29, 2018 to December 1, 2018, until after the discipline had been issued. The AJ found Complainant failed to show by a preponderance of the evidence that the Agency’s articulated reasons for its actions were pretext for discriminatory animus. Accordingly, the AJ held the Agency did not subject Complainant to discrimination as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. 2021001070 4 An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting 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. 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). 2021001070 5 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. 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 June 29, 2022 Date