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

Equal Employment Opportunity Commission

Aug 16, 2022

Appeal No. 2021002876 (E.E.O.C. Aug. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rita F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002876 Agency No. 4E-680-0023-20 DECISION On April 19, 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 March 30, 2021, final decision concerning her 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. During the relevant time, Complainant worked as a Full Time Rural Carrier at the Agency’s Sterling Post Office in Sterling, Kansas. On June 15, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (autism, sensory processing disorder) and in reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. On January 3, 2020, February 7, 2020, and March 3, 2020, Complainant was given Investigative Interviews; 2. On March 13, 2020, Complainant 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. 2021002876 2 3. On March 23, 2020, Complainant was forced to work on her day off; 4. On March 21, 24, and 25, 2020, Complainant was not accommodated per her medical restrictions when she was not permitted to text management; 5. On March 23 and 24, 2020, Complainant was not properly paid for her work performed; 6. Beginning in October 2019 and continuing through June 12, 2020, Complainant was not accommodated per her medical restrictions when she was not provided a refrigerator to store medical supplies; 7. On May 9, 14, 15, 16, and 17, 2020, Complainant was bullied by a co-worker and management did nothing; 8. On January 17, 2020, Complainant's private medical information was shared with management; and 11. On September 14, 2020, Complainant's Postmaster denied her request to report to work 10 minutes early so that she could avoid harassment from her coworkers, despite allowing her to do during the summer.2 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 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 Chap. 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”). 2 Complainant initially asserted two additional claims. Both of these claims, however, were concerning the competence of her union representation and the outcome of an internal grievance process and were dismissed by the Agency in the Letter of Partial Acceptance as these are not within EEOC’s purview. Complainant did not contest the dismissal of these claims and they will not be addressed further herein. 2021002876 3 Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant material facts. As such, we will only address specific facts as necessary to address the immediate issues in the analysis below. Disparate Treatment-Claims 1, 2, 3, 5, and 11 Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant material facts. The final decision also correctly identified the legal standard for Complainant to prove that he was subjected to disparate treatment based on race, as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability and reprisal, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, Manager of Post Office Operations (Manager) averred that the Agency has a standing order to conduct an Investigative Interview whenever there is an accident to determine if there are safety measures in place to prevent such an accident, and whether those safety measures were followed. Report of Investigation (ROI) at 492. Supervisor stated that he conducted the Investigative Interview with Complainant to obtain additional information about her accident on December 27, 2019. ROI at 432. Concerning claim 2, Supervisor stated that Complainant’s Investigative Interviews revealed that the accident was caused by her inattentiveness and hurrying. ROI at 435. He stated that her unsafe behavior caused her accident, resulting in “needless injuries.” ROI at 436. He specified Complainant “is required to perform her duties while not being a danger to herself or others.” ROI at 436. As to claim 3, Supervisor asserted that Complainant’s route, on Complainant’s days off, was being covered by a new substitute carrier. ROI at 438. Supervisor stated that Complainant needed to train the new substitute so that the substitute could perform her route, until the Agency was fully staffed. ROI at 439. Supervisor explained that he had Complainant case her route on her day off so that the new substitute could complete the route before dark. ROI at 438. Concerning claim 5, Supervisor averred that, contrary to her assertion, Complainant was paid for her work. ROI at 443. Supervisor explained, to allow the substitute carrier to return in a timely manner, he curtailed the mail service for the substitute. ROI at 443. The next day, Complainant carried the curtailed mail. ROI at 443. Supervisor stated, “That is part of her job, to carry her route regardless of mail volume.” ROI at 443. Regarding claim 11, Supervisor clarified that, due to heat, he allowed carriers to begin work 30 minutes earlier than their normal work schedules during the summer months. ROI at 454. He relayed that in September, he told all of the carriers to follow their regular schedules, which, for Complainant was 7:00 a.m. ROI at 454. 2021002876 4 Supervisor said that a grievance was filed alleging that Complainant was crossing crafts. ROI at 455. To give the clerks time to complete their work, Supervisor stated that Complainant would begin work at 7:00 a.m. ROI at 455. Having found that the Agency proffered legitimate, non-discriminatory reasons for the aforementioned claims, we now turn to Complainant to provide evidence, sufficient to persuade the trier of fact beyond a preponderance of the evidence, that the Agency’s legitimate, non- discriminatory reasons are a pretext for discrimination. See Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 259 (1981); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “[P]retext can be demonstrated by ‘showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.’” Dalesandro v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (alterations in original) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). In this case, the Commission finds that Complainant has issued no evidence of pretext aside from her own beliefs, assumptions, and inferences. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the Agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. As outlined above, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968 (Sept. 24, 2019). The Commission finds that the file is devoid of such evidence in this case. To the extent that Complainant offered comparators, the evidence indicates that, at the time of the events in question, either the comparators had different supervisors or the events surrounding the events relative to the comparators were distinct from that of Complainant. ROI at 432-34 436-37. To be a valid comparator, all relevant aspects of the comparator's work situation must be nearly identical to Complainant’s. See Martinez v. Dep't of Homeland Sec., EEOC Appeal No. 0120113436 (Nov. 1, 2011) (finding comparators were not similarly situated when they had different supervisors and/or a different chain of command than complainant). As this was not the case with any of the comparators identified by Complainant, the Commission finds that they are not valid comparators in this case. 2021002876 5 Rehabilitation Act-Claims 4, 6, and 8 Reasonable Accommodation-Claims 4 and 6 An agency must make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A qualified individual with a disability is an “individual with a disability” who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). 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 No. 915.002, 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). Improper termination of the interactive process constitutes an improper denial of a reasonable accommodation. See Harvey G. v. Dep't of the Interior, EEOC Appeal Nos. 0120132052 & 0120150844 (Feb. 4, 2016). In the instant case, Complainant had an existing reasonable accommodation, signed by the Agency, on December 22, 2015. ROI at 458. The reasonable accommodation specified that Complainant would have a 7:00 a.m. start time, noise would be kept to a minimum from 7:00 a.m. until 7:30 a.m., customers would obtain Agency equipment tare weights after Complainant departed from her station, and the radio would be turned off during her morning office time. ROI at 458. Neither text messaging with management nor refrigerated supplies were included in Complainant’s December 2015 reasonable accommodation. Complainant presented an undated document from her provider entitled “Revised Accommodation Statement.” ROI at 411. The Commission finds that this document constituted a revision to her reasonable accommodation. On January 8, 2020, the District Reasonable Accommodation Committee invited Complainant to participate in the interactive process for a reasonable accommodation. ROI at 475. Complainant chose not to participate in the interactive process. ROI at 230, 450, 463. As such, any delay in a formal revision of Complainant’s existing reasonable accommodation was directly caused by Complainant. The Commission has consistently found that if the breakdown of the interactive process was caused by Complainant, as is the case here, the Agency is not in violation of the Rehabilitation Act. Dominique B. v. U.S. Postal Serv., EEOC Appeal No. 2020004455 (Jan. 31, 2022) (citing Gonzalez-Brunet v. U.S. Postal Serv., EEOC Appeal No. 0120103081 (June 12, 2012)). Accordingly, we find that Complainant has not established the Agency violated the Rehabilitation Act with respect to claims 4 and 6. 2021002876 6 Disclosure of Medical Information-Claim 8 EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), Notice No. 915.002 (July 26, 2000), explains that the Rehabilitation Act limits an employer's ability to make disability-related inquiries or require medical examinations. Under the Rehabilitation Act, information “regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.” 29 C.F.R. § 1630.14(c)(1); see also 42 U.S.C. § 12112(d)(4)(C). This requirement applies to all medical information, including information that an individual voluntarily discloses. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 26, 2000). Employers may share confidential medical information only in limited circumstances: supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; first aid and safety personnel may be told if the disability might require emergency treatment; and government officials investigating compliance with the ADA and Rehabilitation Act must be given relevant information on request. 29 C.F.R. § 1630.14(c)(1). Despite her allegations that she was informed by Family and Medical Leave Act representatives that her private information was shared with an Occupational Health Nurse, Agency management was not aware of any such occurrence, and there is no corroborating evidence of Complainant’s allegations. ROI at 283, 450. As such, Complainant has not provided evidence to substantiate her claim of such a disclosure as alleged in claim 8. Harassment-Claims 1-8 and 11 With regard to the claims of harassment, the Commission finds that Complainant has failed to provide any evidence that any of the claimed instances were due to any of her protected classes. It is well-settled that harassment based on an individual’s race, national origin, and sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her protected bases; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). 2021002876 7 Upon review, we find that Complainant has not established that the alleged events occurred because of her protected bases. Complainant, herself, asserted that Supervisor was hostile to a number of individuals, all of whom fall outside of at least one, if not all, of her protected classes. ROI at 161-62. It is well-founded that Title VII does not serve “as a vehicle for vindicating the petty slights suffered by the hypersensitive.” See Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784 (E.D. Wis. 1984). The Commission has held that such grievances, “while sometimes unpleasant, do not constitute harassment, even if done in a confrontational manner.” Felton M. v. Dep’t of Agric., EEOC Appeal No. 0120171203 (June 23, 2017). The Commission has long held that Title VII is not a civility code but is intended to prevent discriminatory behavior. Dolly H. v. Dep’t of Agric., EEOC Appeal No. 0120150414 (May 3, 2017); see also Eileen S. v. Dep’t of the Army, EEOC Appeal No. 0120170721 (Mar. 20, 2019) (finding no hostile work environment when, among other things, Complainant was told she “sucked” and that she “did not perform [her] job worth a damn,” and Complainant was told in front of other employees “you are ignorant and do not know what the hell you are talking about”). There must be a distinction made between discriminatory action on the part of the Agency, versus a combination of occasional personality clashes, common workplace grievances, and legitimate administrative actions with which Complainant disagrees, in order for a claim to be actionable. “Otherwise, the [Commission] will become a court of personnel appeals.” Alfano v. Costello, 294 F. 3d 365, 377 (2d Cir. 2002). EEO statutes do not guarantee a complainant a right to work in a pleasant or stress-free environment, but merely one that is free from discrimination. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Where Complainant has “adduced no evidence that [s]he was harassed because of [her] protected class characteristics,” Complainant’s claims of harassment must fail. Davis v Dep’t of the Army, EEOC Appeal Nos. 01A22812, 01A24469, 01A30558 (Nov. 14, 2003). We find that her claims of harassment have failed so here. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the final decision 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 decision finding no discrimination. 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. 2021002876 8 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. 2021002876 9 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 August 16, 2022 Date