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

Equal Employment Opportunity Commission

Dec 12, 2022

Appeal No. 2022003023 (E.E.O.C. Dec. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susie K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003023 Hearing No. 440-2021-00085X Agency No. IJ-614-0006-20 DECISION On May 10, 2022, 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 April 7, 2022, final order 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Parcel Post Distribution Mail Clerk at the Agency’s J.T. Weeker Military Service Center in Chicago, Illinois. On March 30, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (anxiety/panic disorder) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 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. 2022003023 2 1. On July 17, 2019, her request for a reasonable accommodation per her medical restrictions was denied; and 2. On November 23, 2019, she was issued a Notice of Removal (NOR). 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a motion for summary judgment, which the AJ granted in part, dismissing claim 1 pursuant to 29 C.F.R. §1614.107(a)(2) for untimely counselor contact, but denying summary judgment for claim 2. Accordingly, the AJ held a hearing solely on the issue of Complainant’s removal on December 15 and 16, 2021, and issued a decision on March 1, 2022. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s removal on the charge of being Absent Without Leave (AWOL) and failing to maintain regular attendance. The AJ further found that there was no evidence in the record to indicate that animus based on Complainant’s disability was a motive in the removal. However, the AJ found that there was sufficient evidence to indicate a retaliatory motive because the Attendance Control Supervisor (AC Supervisor) specifically referenced Complainant’s prior EEO activity in the email she sent to Human Resources seeking to initiate Complainant’s removal from the Agency. The AJ went on to find that the Agency presented clear and convincing evidence that Complainant would still have been terminated even had the retaliatory motive not been present and therefore, that Complainant was not entitled to any personal relief, i.e., reinstatement. The AJ ordered the Agency to post a notice of the finding and provide the AC Supervisor with 6 hours of in-person training on non-retaliation and confidentiality in the EEO process. The Agency subsequently issued a final order adopting the AJ’s finding. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS 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. 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). 2022003023 3 As an initial matter, we will address the AJ’s dismissal of claim 1, the denial of reasonable accommodation claim, for untimely counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires bringing complaints of discrimination to the attention of the EEO Counselor within forty-five days of the date of the matter alleged to be discriminatory or, within forty-five days of the effective date of a personnel action. The AJ found that Complainant received a letter from the Agency specifically denying her reasonable accommodation request on or about July 17, 2019, thereby triggering the time limit for initiating contact with an EEO counselor. The record shows that Complainant did not contact an EEO counselor until January 26, 2019, which is well beyond the 45-day time limit. We therefore affirm the AJ’s dismissal of claim 1 as untimely. See Samuel C. v. U.S. Postal Serv., EEOC Appeal No. 2021002659 (Sept. 2, 2021). We find that the AJ’s Decision accurately recounted the relevant material facts and identified the legal standards for Complainant to establish that she was subjected to disparate treatment based on reprisal. We further find that substantial evidence supports the AJ’s finding that Complainant established that the Agency was motivated by retaliatory animus in issuing Complainant a notice of removal because of the AC Supervisor’s mentioning Complainant’s prior EEO activity in initiating Complainant’s removal as the AC Supervisor admitted that Complainant’s EEO activity had nothing to do with attendance and that Complainant’s EEO activity was not relevant to the advice she received from HR regarding Complainant’s removal. See Hr’g Tr. at 379, 381. Cases where there is evidence that discrimination was one of multiple motivating factors for an employment action, that is, the employer acted on the bases of both lawful and unlawful reasons, are known as “mixed motive” cases. Once an employee demonstrates that discrimination was a motivating factor in the employer's action, the burden shifts to the employer to prove, by clear and convincing evidence, that it would have taken the same action even if it had not considered the discriminatory factor. See Price Waterhouse v. Hopkins, 490 U.S. 228, 249, 258 (1989); Tellez v. Dep’t of the Army, EEOC Request No. 05A41133 (Mar. 18, 2005). If the employer is able to meet this burden, the employee is not entitled to personal relief, that is, damages, reinstatement, hiring, promotion, and/or back pay. But the employee may be entitled to declaratory relief, injunctive relief, attorneys’ fees, or costs. See Complainant v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). On appeal, Complainant argues only that the AJ erred in concluding that the Agency presented clear and convincing evidence that it would have taken the same action regardless of the discriminatory motive and that therefore, she should be entitled to personal remedies, such as reinstatement. We reject Complainant’s argument. Complainant has not identified any actual error on the part of the AJ, only contending that the AJ reached the wrong conclusion based on the evidence in the record. We find that the AJ thoroughly considered all the relevant evidence in the record and drew reasonable conclusions therefrom. In reaching their conclusion, the AJ specifically noted that the evidence in the record indicated that Complainant was appropriately charged AWOL on numerous occasions throughout 2019 and also that the Agency had previously removed multiple other employees on the same charges of being AWOL and failing to maintain regular attendance. 2022003023 4 While Complainant understandably disagrees with the AJ’s finding, Complainant has not identified any error on the part of the AJ. We find that the AJ’s conclusions are supported by substantial evidence in the record and therefore, the AJ’s findings must be affirmed. See Harry A. v. Social Sec’y Admin., EEOC Appeal No. 0120141017 (Jan. 26, 2017); Renwick v. Dep’t of the Navy, EEOC Appeal No. 0120112665 (Oct. 20, 2011). Accordingly, we affirm the AJ’s finding that Complainant is not entitled to personal remedies.2 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 order adopting the AJ’s decision. ORDER (C0618) To the extent the Agency has not already done so, the Agency is ordered to take the following remedial actions: 1. Within thirty (30) calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the paragraph entitled, “Posting Order.” 2. Within ninety (90) calendar days of the date this decision is issued, the Agency shall provide the AC Supervisor with 6 hours of in-person training on non- retaliation and confidentiality in the EEO process. The Agency may contact our Training and Outreach Division for Assistance in obtaining the necessary training via https://www.eeoc.gov/federal-sector/federal-training-outreach. 3. Within thirty (30) calendar days of the date this decision is issued, the Agency shall consider taking disciplinary action against the AC Supervisor. If the Agency decides to take disciplinary action, then it shall identify the action(s) taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). POSTING ORDER (G0617) The Agency is ordered to post at its J.T. Weeker Military Service Center in Chicago, Illinois copies of the attached notice. Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 2 We do, however, modify the Order to provide for the consideration of disciplinary action against the AC Supervisor. 2022003023 5 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2022003023 6 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 December 12, 2022 Date