[Redacted], Rose J., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 8, 2022

Appeal No. 2021000786 (E.E.O.C. Aug. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rose J.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021000786 Agency No. 4G-770-0263-19 DECISION On November 11, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 21, 2020 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. Complainant worked as a City Letter Carrier, 01-E, at University Station in Houston, Texas. On November 22, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of disability (residual effects of knee injury sustained on the job; post-traumatic stress disorder (PTSD)) and in reprisal for prior protected EEO activity when: 1. On February 11, March 11, and April 8, 2019, the Customer Service Operations Manager (CSOM) denied Complainant’s repeated requests for upward mobility/ promotion; 2. On unspecified dates in February, March, and April 2019, CSOM constantly told Complainant that she would not be promoted until she was off limited duty; 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. 2021000786 2 3. On multiple occasions throughout February 2019, CSOM made inappropriate comments about not promoting employees on limited duty and told Complainant to stop thinking about being promoted; 4. On unspecified dates between February and June 2019, CSOM called Complainant after work hours yelling at her and requesting work-related information; 5. On unspecified dates, CSOM called Complainant during her sessions with an Employee Assistance Program (EAP) counselor and told Complainant that she could not make her own EAP appointments; 6. On an unspecified date in June 2019, CSOM moved Complainant out of her assignment and required her to sit in the back of the post office; 7. On unspecified dates in July 2019, CSOM and a Customer Services Manager (CSM1) moved Complainant to different facilities and harassed her by telling the managers at those facilities not to let her detail into an acting supervisor (204-B) position; 8. On an unspecified date, Complainant was sent back to Area 6 (CSOM’s area) and not allowed to assist with any administrative duties; 9. Since July 2019, the Postmaster (PM) instructed Complainant to contact a Human Resources Manager (HRM) to request a reasonable accommodation; 10. On January 23, 2020, a second Customer Services Manager (CSM2), at the behest of CSOM, revoked Complainant’s access to Microsoft Outlook and told Complainant that she could no longer work the Customer 360 customer service function; and 11. On an unspecified date in February 2020, a Customer Services Support Supervisor (CSSS) informed Complaint that her delivery route would be taken away since she could not carry. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. On August 24, 2020, Complainant requested a final agency decision. In accordance with Complainant’s request, the Agency issued a decision in which it found that Complainant had not been subjected to discrimination or reprisal as alleged. This appeal followed. 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 2021000786 3 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”). Hostile Work Environment To establish a claim of discriminatory or retaliatory harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment 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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We note that the antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, as for incidents (1), (2) and (3), CSOM and other management officials averred that the customer services managers under CSOM had the discretion as to who they would promote and that, although she was well qualified for positions that she had bid on, other candidates had more extensive experience and qualifications. CSOM denied that Complainant’s medical condition played a role in her not receiving promotional opportunities. PM noted that detail 2021000786 4 opportunities were not as plentiful because many were eliminated when the new District Manager arrived. IR 192-95, 208, 230-21, 236-38, 243, 247. As to incidents (4) and (5), CSOM affirmed that he did not call her after work hours or during her EAP sessions, that management did not need to approve employee EAP appointments, and that Complainant would often schedule her EAP appointments during work hours without notifying anyone that she would be out of the office. IR 196-98, 243. Concerning incidents (6), (7), and (8), CSOM averred that Complainant’s immediate supervisors made decisions on where to assign Complainant based upon the medical documentation that she submitted, and that he did not tell his subordinate supervisors and managers not to let Complainant act as a 204-B supervisor unless in doing so, she would exceed her medical restrictions. IR 198-201, 209, 254. One of the customer service managers under CSOM averred that Complainant was moved to a particular location because she herself had requested to be moved. IR 244. With respect to incident (10), PM and one of Complainant’s managers explained that Complainant’s access to Outlook was revoked because Complainant was no longer assigned to work Customer 360. Further, there was an informal rule against non-EAS employees having access to the Customer 360 customer service function as only management was in a position to resolve customer complaints. IR 222, 224, 259, 263. With regard to incident (11), CSSS affirmed that Complainant successfully bid on a carrier position, but failed to provide the requested documentation indicating that she could perform the duties of the position. As a result, the position was reassigned. IR 294-96, 300-01, 304-06, 310. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence demonstrating that the Agency's explanation for its actions was pretext for discrimination or reprisal. Accordingly, we find that Complainant has not shown that she was subjected to discrimination, reprisal, or a hostile work environment. Denial of Reasonable Accommodation Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under 2021000786 5 the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance on Reasonable Accommodation”). An individual with a disability is ““qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the 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). Here, Complainant stated that she had a permanent injury to her left knee. As a result, Complainant could not stand comfortably for any prolonged period of time, needed two consecutive days off, could not drive a Postal truck, could not lift more than 10 pounds, and could not walk on uneven surfaces. In addition, Complainant experiences complications from PTSD. Complainant acknowledged that she was provided limited duty assignments at various stations in Area 6 including counting mail, covering routes, entering data, calling managers and checking her manager’s email, keeping up to date with suspenses and discipline, going to accident sites and other clerical work. PM affirmed that Complainant had been given a suitable job offer by virtue of being in limited duty status and that he had advised Complainant to contact the human resources office if she had questions, since they were the experts. A Human Resources Manager stated that he could not recall Complainant requesting a reasonable accommodation but noted that he had spoken with Complainant several times and that by virtue of being in limited duty status, Complainant had been provided with limited duty assignments and was therefore being accommodated. IR 283-84, 286-91. Complainant has presented no evidence demonstrating that the provided accommodations were ineffective. We note that the Rehabilitation Act does not require an agency to promote an employee as a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation. As a result, the Commission finds that Complainant has not demonstrated that the Agency denied her reasonable accommodation in violation of the Rehabilitation Act. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record 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. 2021000786 6 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. 2021000786 7 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 08, 2022 Date