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

Equal Employment Opportunity Commission

Sep 8, 2022

Appeal No. 2021001742 (E.E.O.C. Sep. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tristan S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001742 Agency No. 1G-754-0045-20 DECISION On January 16, 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 December 21, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as a Mail Handler, MH-04, at the Agency’s Processing and Distribution Center in Dallas, Texas. The record shows that the duties of Complainant’s Mail Handler position include loading and unloading bulk mail from trucks, separating and carrying bulk mail to distribution areas, emptying sacks on racks, placing processed mail into sacks, and removing filled sacks from racks. On December 31, 2019, Complainant submitted a reasonable accommodation request for light duty work to the District Reasonable Accommodation Committee (DRAC). 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. 2021001742 2 In his request, Complainant stated that he had Bronchiolitis, which caused impaired lung function, cardiac issues, and limited his ability to breathe. For these reasons, explained Complainant, he was unable to do work which required strenuous exertion. In support of his request, Complainant submitted two Medical Information and Restriction Assessment forms (“Assessment Forms”) that were completed by his Pulmonary Physician and Cardiologist. Complainant’s Pulmonary Physician completed an Assessment Form on December 23, 2019, and stated that Complainant was diagnosed with Bronchiolitis and had “difficulties with physical exertion due to lung disease.” In response to a question concerning “maximum” abilities, the Pulmonary Physician stated that, at most, Complainant could lift 0 - 10 pounds, push/pull intermittently for one hour during an 8-hour workday and bend intermittently for an hour during an 8-hour workday. In the Assessment Form provided by Complainant’s Cardiologist, he disclosed that Complainant had pulmonary hematoma. According to the Cardiologist, at maximum, Complainant could lift five pounds, push/pull intermittently for nine hours a day, and bend intermittently for nine hours day. Complainant’s Pulmonary Physician and Cardiologist also completed Light Duty Request forms. Both physicians restricted Complainant to light duty work, permanently. In response to whether Complainant could operate motorized vehicles, including trucks and forklifts, the Pulmonary Physician wrote “no”, while the Cardiologist wrote “yes.” Complainant testified that, instead of temporarily assigning him to light duty work, he was sent home on January 1, 2020, and advised that management would provide further instructions. He was invited to a telephonic DRAC meeting eleven days later, on February 12, 2020. Complainant stated that at the meeting, the DRAC offered him a job in the same unit that he worked in, but with the help of a pallet jack. Complainant argued that even with a pallet jack he would still have to engage in lifting, bending, pushing, and pulling activities, and these activities affect his ability to breathe. He explained that empty pallets had to be picked up manually and stacked from the loading station, so he would still have to do a lot of lifting and bending. Further, Complainant asserted that operating the pallet jack was detrimental to his health because it required pushing and pulling, and his doctor “clearly mentioned in the accommodation request that [he] cannot operate motorized vehicles such as trucks and forklifts.” Complainant indicated that there were some tasks, which he considered strenuous, where he would not have the motorized aid of a pallet jack, such as manually lifting and loading hampers. Complainant believed that the DRAC’s decision to offer him a pallet jack was “gross negligence” because it “completely went against what [his] doctor stated”, and he declined the DRAC’s accommodation as dangerous to his health. Believing that he was subjected to unlawful discrimination, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant’s concerns were unsuccessful. 2021001742 3 On July 2, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (India), sex (male), religion (Christian), color (brown), disability and age when: 1. From December 19, 2019 and ongoing, Complainant’s request for light duty work accommodation was not granted and Complainant was sent home and not allowed to return to work. 2. On or about March 2, 2020, Complainant received a letter from the District Reasonable Accommodation Committee (DRAC) which stated Complainant’s request for light duty accommodation would not be granted. The Agency accepted the complaint for investigation. The evidence developed during the investigation showed that the Distribution Operation Manager (“Manager”) said he sent Complainant home on January 1, 2020, because Complainant “stated that he could not do the work requested of him.” Manager attested that he was responsible for initially denying Complainant’s request for light duty because he was under the impression that Complainant’s lung condition did not affect his ability to perform his duties. Manager believed Complainant “does not want to work his job bid, he only wants to work in one area (flat sorters). [Complainant] has all the rights to bid on a job anywhere he want[s] to under the Mail Handler contract.” In response, Complainant denied stating that he “could not do the work requested of him.” Rather, Complainant explained that on January 1, 2020, he was simply working in his assigned area and had not expressed any issues with continuing to do so. Complainant clarified that it was the Acting Manager of Distribution Operations who “clocked [him] out” in the middle of his shift and sent him home, not Manager. In a letter dated February 25, 2020, the DRAC offered Complainant a motorized pallet jack to accommodate his bending and lifting restrictions. The letter stated further, that “management offered to provide [Complainant] with training” on how to use the motorized device, but Complainant “declined to accept the accommodation, declined the training, and declined to even try to see if the use of the motorized equipment would assist [him] performing the essential functions of [his] position with [his] restrictions.” The letter explained that the DRAC consulted its residual vacancies, in an effort to find a position with Complainant’s “essential functions” that he could perform with or without reasonable accommodation, but one was not located. 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 EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2021001742 4 The instant appeal followed. Complainant submitted two statements in support of his appeal. In his first statement, Complainant expresses disagreement with the Agency’s final decision. Thereafter, in the August 8, 2022 statement, Complainant moves to amend his complaint to add a new claim challenging his recent removal.2 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 In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g); Marcellus M. v. U.S. Postal Serv., EEOC Appeal No. 0120182213 (Aug. 16, 2019). Major life activities include such functions as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; and the operation of a major bodily function. 29 C.F.R. § 1630.2(i). An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to the ability of most people in the general population. 29 C.F.R. § 1630.2(j)(1)(ii). 2 On August 4, 2022, Complainant was issued a Notice of Removal (“Notice”) based on unacceptable attendance, effective within 30 days. Additionally, the Notice noted that, during the investigative interview, while Complainant expressed that he was awaiting paperwork from his physician, he never provided a possible date of return. According to the Notice, Complainant had been absent without leave for over 1,124 hours and failed to keep management informed of his need to take unscheduled leave. 2021001742 5 Such limitations must be shown to be of permanent or long-term duration. See Rose v. U.S. Postal Serv., EEOC Appeal No. 0120061879 (Nov. 30, 2007) (AJ found that employee failed to establish that she was an individual with a disability, noting that employee did not show that limitations resulting from her medical condition were of permanent or long-term duration). Complainant has been diagnosed with Bronchiolitis and Pulmonary Hematoma, and his Pulmonary Physician stated his conditions substantially limit him in the major life activities of breathing, lifting, pushing and pulling. Specifically, he is only able to lift 5-10 pounds and push/pull and bend intermittently for an hour a day. We find that Complainant is an individual with a disability under the Rehabilitation Act because he is substantially limited in the major life activity of lifting. See, e.g., Higgins v. U.S. Postal Serv., EEOC Appeal No. 07A300S6 (Sept. 14, 2005) (finding complainant was substantially limited in the major life activity of lifting where he was restricted to lifting no more than 20 pounds); see also Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013) (finding complainant is individual with a disability where she was substantially limited in the major life activity of lifting and restricted to lifting no more than 10 pounds). The next inquiry is whether Complainant is a “qualified” individual. A qualified individual with a disability is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment positions such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. §1630.2(m). We find that the essential functions of the Mail Handler position included loading, unloading and moving bulk mail. The duties include dumping mail from sacks, placing mail into sacks, removing filled sacks from racks, and carrying mail to distributors. Although the Agency offered the use of a pallet jack, Complainant countered that this only used in loading a pallet. Even with a pallet jack, Complainant contended his position still required pushing, pulling, bending and lifting outside of his restrictions. Therefore, we find that Complainant could not perform the essential functions of the Mail Handler position. Next, we must assess whether Complainant was a qualified individual with a disability with respect to other positions, and as such, was eligible for reassignment to a vacant, funded position for which he could perform the essential functions. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable complainant to perform the essential functions of his current position or all other reasonable accommodations would impose an undue hardship. King W. v. U.S. Postal Serv., EEOC Appeal No. 2019001070 (Mar. 20, 2019); Zachary K. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015). In its February 25, 2020 correspondence, the DRAC stated that it “consulted its residual vacancies to see if there was a position, the functions of which you might be able to perform with or without reasonable accommodation. 2021001742 6 However, one was not located.” We find that the record is inadequately developed regarding what occurred following Complainant’s rejection of the pallet jack to perform the Mail Handler duties. According to Complainant, following the offer of the pallet jack, he was not working because he was “still waiting to be offered an appropriate and accommodating job.” He attested that his only meeting with DRAC was the February 2020 telephonic meeting. According to Manager, the specific accommodation requested by Complainant was “work outside his bid job only in one area of the building.” However, Manager proceeded to attest in the affirmative when asked whether Complainant requested accommodation would have allowed him “perform the duties required in their work assignment”. According to Manager, he attested that Complainant’s requested accommodation was granted, but he also stated that Complainant denied the accommodation. When asked if an alternative accommodation was offered, Manager plainly stated: “no”. The other witnesses similarly attested that no alternative accommodation was offered. Despite the Agency’s assertion, in its decision, that “Complainant responded to the DRAC’s decision by insisting that the be provided a ‘light duty’ position without identifying any vacant funded position in accounting of programming” there is no evidence in the record that any discussion was held with DRAC, or other Agency officials following the offer of the pallet jack. Based on the instant record, it appears that the interactive process ceased when Complainant explained why the pallet jack would be an ineffective accommodation. While an agency cannot be held liable solely for a failure to engage in the interactive process, liability can attach when the failure to engage in the interactive process results in the agency’s failure to provide reasonable accommodation. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den’d, EEOC Request No. 05A30114 (Jan. 9, 2003). The sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation, and an agency’s failure to engage in this process does not give rise to a separate cause of action because the interactive process is not an end in itself. Broussard, supra. Here, we find that the record is inadequate to determine whether the Agency fulfilled its obligations under the Rehabilitation Act. The investigation should have developed more information regarding what alternative accommodations were offered and, if a job search was conducted, the inquiry should have encompassed additional details about Complainant’s condition, what duties or jobs he could have performed within his restrictions, any available positions that Complainant could have been reassigned, and whether Complainant could have performed the essential functions of the vacant positions with or without reasonable accommodation. In litigation, an employee seeking reassignment as a reasonable accommodation generally must make a facial showing that there existed a vacant, funded position whose essential functions the employee could perform. See, e.g., Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997); see also Hampton, supra, (complainant can establish that vacant, funded positions existed by 2021001742 7 producing evidence of particular vacancies or by showing that s/he was qualified to perform a job or jobs that existed at the agency and there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period). However, we note that during the interactive process, the Agency is in the best position to know which jobs are vacant or will become vacant within a reasonable period of time and is therefore obligated to expeditiously inform Complainant about vacant positions for which he might be eligible in a reassignment. Enforcement Guidance, Question # 28; Bill A. v. Dep’t of the Army, EEOC Appeal No. 0120131989 (Oct. 16, 2016) (investigator must obtain relevant information about the availability of vacant, funded positions). During the investigative stage of the federal administrative process, the Agency has an obligation to develop an adequate investigative record. 29 C.F.R. § 1614.108. “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” Id. § 1614.108(b). The investigator must conduct a thorough investigation, “identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome.” EEO MD-110, Chap. 6 § V.D. Therefore, the investigator must exhaust those sources of information likely to support the positions of the complainant and the agency. Id. The investigative record in this case is inadequate. Accordingly, we have no choice but to remand this matter for a supplemental investigation as to whether Complainant could be accommodated, specifically as related to vacant, funded positions available for reassignment that Complainant could perform; and any other pertinent information. New Claim on Appeal On appeal, Complainant attempts to raise a new claim - his August 4, 2022 Notice of Removal (“Notice”). The Notice, effective within 30 days, was based on unacceptable attendance. Specifically, the Notice observed that, during the investigative interview, while Complainant expressed that he was awaiting paperwork from his physician, he never provided a possible date of return. According to the Notice, Complainant had been absent without leave for over 1,124 hours and failed to keep management informed of his need to take unscheduled leave. As this claim is like or related to his denial of reasonable accommodation, we find it is appropriate to grant the amendment and include the removal in the supplemental investigation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Agency’s final decision is VACATED. The case is REMANDED to the Agency for further processing in accordance with this decision and the Order below. 2021001742 8 ORDER Within sixty (60) calendar days of date this decision is issued, the Agency shall conduct and complete a supplemental investigation consistent with the requirements of 29 C.F.R. § 1614.108(b), in EEO MD-110, Chapter 6 and the guidance in this decision. The supplemental investigation shall include, but is not limited to: how and when the interactive process ceased, whether Complainant’s medical condition could be accommodated within his position; whether, and what, alternative accommodations were offered; and whether positions were available and considered for reassignment. In addition, the investigation shall include the amended claim concerning the August 4, 2022 Notice of Removal. Upon completion of the supplemental investigation, the Agency must provide the Complainant with a copy of the supplemental record and shall again provide him with a right to a hearing or immediate final agency decision as provided in 29 C.F.R. § 1614.108(f). If Complainant elects an immediate final agency decision, that decision shall be issued within sixty (60) calendar days of receipt of the request for the decision or the expiration of the request period. In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. 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). Further, the report must include evidence that the directed action has been taken. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). 2021001742 9 Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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). 2021001742 10 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 8, 2022 Date