[Redacted], Lee R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Office of the Inspector General), Agency.

Equal Employment Opportunity Commission

Sep 22, 2022

Appeal No. 2021003897 (E.E.O.C. Sep. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lee R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Office of the Inspector General), Agency. Appeal No. 2021003897 Agency No. 56-000-0007-20 DECISION On June 26, 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 May 24, 2021, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Public Policy Analyst. OIG-5, in the Agency’s Office of the Inspector General in Arlington, Virginia. On July 21, 2020 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Major Depression, Generalized Anxiety Disorder, Panic Disorder) and in reprisal for prior protected EEO activity when: 1. Beginning on or about November 7, 2019, and continuing, members of management denied his multiple requests for accommodation; 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. 2021003897 2 2. On February 27, 2020, the Reasonable Accommodation Committee (RAC) denied his February 23, 2020 request for reasonable accommodation; and 3. On April 27, 2020, Complainant received a negative mid-year review, which contained false allegations. Requests for Reasonable Accommodations In May 2019, Complainant’s supervisory chain changed, and he began working under a new direct supervisor (S1). In his affidavit, Complainant broadly asserted that his working relationship with S1 was untenable and directly affecting his mental health. However, Complainant offered very little detail as to what caused the working relationship to deteriorate. Starting in November 2019, Complainant began asking his second and third-level supervisors (S2 and S3) to be reassigned to a different supervisor. Both S2 and S3 asked Complainant to try and work it out with S1. Beginning in late 2019, Complainant began initiating informal requests for reasonable accommodation. S2 testified that she never received a formal request from Complainant to transfer out from under S1’s supervision during the November 2019, time period. S2 confirmed that it was management’s desire that Complainant attempt to repair his relationship with S1 before exploring a transfer. Through a letter from his therapist, Complainant requested accommodation. Specifically, the letter said that Complainant received medical treatment on February 21, 2020, and that Complainant would benefit from being reassigned to another manager “to limit the escalation of his psychological distress.” Agency management recognized the therapist’s letter as a request for reasonable accommodation, and on February 27, 2020, management denied Complainant’s request. In its denial, the Agency offered to assist Complainant in exploring other options as accommodation. On April 3, 2020, with documentation from his therapist attesting to his medical conditions, Complainant requested five accommodations: (1) a change of supervision away from S1; (2) full- time telework; (3) being permitted to stay logged out of instant messaging apps, except when required for a business purpose; (4) limiting any communication with S1 to emails; and (5) having an intermediary to mediate when a personal issue arose. The documentation did not explain how each accommodation was necessary to ensure that Complainant would be able to perform the essential functions of his job. After a meeting on April 8, 2020, Complainant asserted that the Agency denied all but the third request. The record contains a letter dated April 23, 2020, from the Reasonable Accommodation Committee asking for more information from Complainant’s medical provider to support his request for full-time telework. Specifically, the Agency asked Complainant to explain how full- time telework would enable Complainant to perform the essential functions of his job, and to discuss why coming into the office one day a week caused Complainant psychological distress. There is no indication Complainant responded to this letter. 2021003897 3 S2 confirmed that Complainant was only granted his third request because the Reasonable Accommodation Committee did not think they were reasonable accommodations. The Assistant Inspector General (AIG) noted that, in his observation, the issues between Complainant and S1 resulted from a personality conflict rather than a medical condition, and that it was not the Agency’s practice to reassign subordinates based on personality disagreements. Complainant criticized the Agency’s decision and argued in his affidavit that limiting communications to email constituted a reasonable accommodation because it is available to deaf people. Complainant is not deaf. In his affidavit, Complainant repeatedly argued that S1 created a hostile work environment that led to mental health issues, subjected Complainant to negative treatment, and created a false narrative to gaslight Complainant. Complainant also noted that S1 and S2 were both part of the Reasonable Accommodation Committee and contended that this was a conflict of interest. Negative Mid-Year Review In his mid-year review, S1 wrote that Complainant did not demonstrate good judgment or business acumen. S1 noted that he had a meeting with Complainant in which he identified three situations in which he believed Complainant did not exercise good judgment. In the first incident, S1 assigned Complainant to be the back-up for a coworker whose primary job was to validate the results from the Omnibus survey. However, Complainant refused the assignment without elaboration. Second, Complainant sought to bypass his chain of command and send an assignment straight to the Assistant Inspector General without allowing S1 or S2 to review the document. Third, Complainant took a screenshot of an interaction he had with another coworker and posted it to the workgroup with criticism. During a meeting between Complainant, S1, and S2, S2 indicated that the screenshot was unprofessional. S1 maintained his comments were not negative, but rather constructive criticism. Complainant argued that the mid-year review mischaracterizes his interactions and is not an accurate portrayal of his performance. S2 stated that most of her “employees received written areas of improvement in their coaching phase.” It is apparent from the record that S2 is referring to the mid-year review process. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected him to discrimination or reprisal as alleged. The instant appeal follows. 2021003897 4 CONTENTIONS ON APPEAL On appeal, Complainant contends the record contains extensive evidence that he was subjected to a hostile work environment. Complainant argues that his supervisors were well aware that his interactions with S1 caused his mental health to deteriorate. Complainant insists that his requested accommodations were reasonable. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Denial of Reasonable Accommodation - Claims (1) and (2) Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002); see also Abeijon v. Dep't of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). In this case, we find that the Agency did not fail to accommodate Complainant. The record is replete with evidence of Complainant’s medical diagnosis. However, the record is completely devoid of evidence demonstrating how any of Complainant’s requested accommodations would enable him to perform the duties of his job, despite requests from the Agency for that information. 2021003897 5 When an individual's disability or need for reasonable accommodation is not obvious, and he fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, Question 6 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). Complainant’s initial accommodation request was to change supervisors. We note that “[a]n employer does not have to provide an employee with a new supervisor as a reasonable accommodation.” Enforcement Guidance on Reasonable Accommodation, Question 33 (Guidance). The Guidance does acknowledge that supervisory methods may need to be altered, and that employees with disabilities retain all protections against disability-related harassment. Id. To this end, Complainant’s request to communicate through email might be a reasonable accommodation if Complainant is able to establish that his request would enable him to perform the essential functions of his job. However, Complainant presents only conclusory arguments, without explanation or analysis, that would tend to demonstrate the validity of this accommodation. We note that Complainant asserts that written communications is a reasonable accommodation for deaf employees and therefore should be reasonable for him. This argument fails. First, Complainant is not deaf. Second, this argument assumes facts not in evidence and ignores the individualized nature of the interactive process. It is through this fact-specific analysis that an employer and employee can determine whether a reasonable accommodation exists. To this end, restricting communication from a supervisor to email communication is not a given, even for a deaf employee. Rather, a deaf employee still is required to show how it would be a reasonable accommodation. In that vein, Complainant does not demonstrate how his request would serve to accommodate his disability. Likewise, Complainant has not established how a Human Resources representative acting as a mediator for conflicts with S1 was necessary to enable him to perform the essential duties of his position. We note that the Agency granted Complainant’s request to not stay logged on to instant messaging while not needed. Further, Complainant acknowledged that he has been allowed to telework full time. Finally, the record demonstrates that S1 was subsequently detailed to another assignment in June 2020 and Complainant is no longer under S1’s supervision. Accordingly, based on the circumstances present, the Commission finds that Complainant has not established that the Agency denied him reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment - Claim (3) To prevail in a disparate treatment claim, 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 he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). 2021003897 6 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. S1 identified three situations that led him to provide feedback to Complainant in his mid-year performance review. S1 added that he did not believe he was providing negative feedback, but rather constructive criticism. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry his burden here. Therefore, we find that Complainant has not demonstrated that the Agency discriminated or retaliated against him as alleged. Furthermore, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2021003897 7 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). 2021003897 8 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 September 22, 2022 Date