0120162002
01-25-2018
Spencer T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Spencer T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120162002
Agency No. 1J-494-0034-15
DECISION
On May 27, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 2, 2016 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. and 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 decision in part and REVERSES in part.
ISSUES PRESENTED
1. Did the Agency fail to accommodate Complainant?
2. Has Complainant shown by a preponderance of the evidence that the Agency discriminated against him when: he did not receive his paychecks in a timely manner; a supervisor accused him of acting like he did not hear the supervisor; management failed to deal with a co-worker who had blamed him for not responding to a page and getting the mail out; and the District Reasonable Accommodation Committee (DRAC) proposed a communication plan for him and never implemented it?
3. Was Complainant subjected to unlawful harassment?
BACKGROUND
At the time of the complaint, Complainant worked as a Mail Handler/Equipment Operator at the Agency's Processing & Distribution facility in Grand Rapids, Michigan. Complainant had worked for the Agency as a Mail Handler from March 1991 at various pay levels.
On October 22, 2015, Complainant filed a discrimination complaint alleging that the Agency discriminated against him on the bases of disability (hearing) and reprisal2 for prior protected activity when:
1. On August 25, 2015 and September 13, 2015, the Agency failed to accommodate him when it did not provide him with written communication concerning policies, service talks, and instructions as he had requested.
2. Beginning November 6, 2015, Complainant did not receive his paychecks in a timely manner.
3. On November 29 or November 30, 2015, a supervisor accused him of acting like he did not hear her.
4. On December 5, 2015, management failed to deal with a co-worker who blamed Complainant for not responding to a page and not getting the mail out.
5. On an unspecified date, the District Reasonable Accommodation Committee (DRAC) proposed a communication plan for him but it was never implemented and distributed to management nor was a two-way pager implemented.
Following an 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 or an Agency decision. Complainant requested an Agency decision which the Agency issued its decision pursuant to 29 C.F.R. � 1614.110(b). In its decision, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged or that it had denied him a reasonable accommodation.
CONTENTIONS ON APPEAL
Complainant asserts that he is asserting new claims of discrimination and reprisal.3 He maintains that the Agency has failed to accommodate him. Complainant contends that the primary cause of his claims is the Agency's failure to address issues concerning intercom paging. He maintains that he was not provided written copies of talks as an accommodation so that he could meaningfully participate in meetings and that his supervisor's statements should not be believed. Complainant also maintains that the Agency subjected him to retaliatory conduct and addressed his explanations concerning why this occurred.
The Agency has not filed an appeal brief.
ANALYSIS AND FINDINGS
Standard of Review
This is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b). Accordingly, 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) A de novo 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".
Applicable Law
Complainant alleged that he was discriminated against based on his disability and the Agency failed to provide him with a reasonable accommodation.
Under the Rehabilitation Act, 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).
The Agency is required to provide a reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability, absent undue hardship. 29 C.F.R. � 1630.2(o); 29 C.F.R. � 1630.2(p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002).
An agency is also required to make a reasonable accommodation not only so that the individual can perform the essential functions of a job but, also, so that the employee can "enjoy the benefits and privileges of employment equal to those enjoyed by similarly-situated employees without disabilities"); Wait v. Soc. Sec. Admn., EEOC Appeal No. 01A11629 (Oct. 2, 2003); Reiley v. U.S. Postal Serv., EEOC Appeal No. 07A10019 (June 7, 2002)(an employer must provide reasonable accommodation to enable an employee with a disability to have equal access to information communicated in the workplace); Henry v. U.S. Postal Serv., EEOC Appeal No. 01942785 (July 8, 1994)(denial of opportunity to attend agency picnic stated a claim of disability discrimination).
Complainant has also alleged that he was subjected to reprisal. The Commission has a policy of considering reprisal claims with a broad view of coverage. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Thus, a violation will be found if an Agency retaliates against a worker for engaging in protected activity through threats, harassment, or any other adverse treatment that is reasonably likely to deter protected activity by that individual or other employees.
Complainant has also alleged that he was subjected to disparate treatment. The United States Supreme Court has provided a systematic approach for analyzing complaints alleging discrimination in employment. Under the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a complainant has the initial burden of establishing a prima facie case of discrimination. The agency must then articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1982). The prima facie inquiry can be dispensed with where the agency has articulated legitimate, nondiscriminatory reasons for its actions. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
To ultimately prevail, the 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Analysis
As an initial matter, the Commission notes that the Agency does not dispute that Complainant was a qualified individual with a disability. Complainant stated that he had a significant hearing loss with a history of bilateral ear canal atresia and a history of bilateral, moderate to severe, conductive hearing loss. Complainant was born deaf but wore a hearing aid in a surgically created right ear canal from a surgery at age two and a half.
Claims 1, 5
The Commission first addresses claims 1 and 5 which are claims of a denial of a requested accommodation. We find that the Agency did not deny an accommodation regarding claim 1 but that it failed to provide a reasonable accommodation with respect to claim 5.
Regarding Complainant's allegation that he was not being provided written communications as an accommodation (claim 1), we do not find in Complainant's favor. Complainant's supervisor (S1), who was a Supervisor of Distribution Operations, did not fail to provide him with written communication for meetings as an accommodation.
S1 had worked with Complainant for over a decade as a Mail Handler, was his supervisor for about six months, and knew that Complainant had a hearing impairment. He stated that almost daily, he held five to 10-minute "plan 5" meetings at the beginning of the shift. Employees discussed such things as work volume for the day and turning in paperwork. S1 also stated that if there was information concerning Complainant, he would give him written communication before the meeting. Besides, Complainant was the only driver on the shift so he was assigned as scheduled to his normal bid position. S1 stated that during a DRAC meeting, it was agreed that all service talks would be provided in writing to Complainant. He also stated that any service talks from safety or operational orders were provided to Complainant before the meeting began so he could review it. On occasion, written communication may not have been provided when, for example, another supervisor had to act in S1's stead for the day and the accommodation may not have been communicated to the acting supervisor. Nonetheless, under the circumstances of this case, we do not find that the Agency failed to accommodate Complainant in providing written communications.
Regarding claim 5, however, we find that the Agency failed to accommodate Complainant as it relates to not having provided him with an accommodation that would have allowed him to hear pages over the loudspeaker in his workplace In her affidavit, the DRAC Chair acknowledged that Complainant could not hear pages over the loudspeaker and that there were many machines in operation at the same time. The problem appears to have been compounded by the noises of machinery in the workplace. While the Agency described what devices it had considered concerning an accommodation, i.e., two-way pager, a Sprint telephone and a Zipit communication system, wthe Agency has not taken actions in a timely manner designed to provide Complainant with an accommodation. In this regard, we note the attempts made by the DRAC Chair in finding an accommodation but her efforts in working with management to do so have been to no avail. In the meantime, Complainant has not heard pages, has to receive paged information from co-workers or S1 would have to call him when he became aware that Complainant had not responded to a page.
The Agency is required to provide a reasonable accommodation to a qualified person with a disability, absent undue hardship. Here, the Agency has not provided any evidence of undue hardship in providing an accommodation for him. Therefore, the Agency was required to provide a reasonable accommodation which it has failed to do, and its long delay in providing one without a showing of undue hardship, is tantamount to a denial.
Claim 2
Regarding not receiving his checks in a timely manner, Complainant stated in his affidavit that he was treated differently from other employees who receive their check timely. He stated that the Agency's action was done for retaliatory reasons and to harass him and, also, because the Agency has had to accommodate him for his disability. Complainant, a Tour 1 employee, began his tour at 23.30 hours on Thursday and ended his tour on Friday at 8:00 a.m. He stated that he should have received his check at the beginning of his tour of duty because the banks were closed and Agency rules were clear that he should receive his check on Thursday.
In its decision, the Agency stated that Complainant was provided his paychecks according to Agency regulations and that he has not shown that others similarly situated were treated more favorably than he was. The Agency also noted that the checks were kept at the P-1 facility and Complainant worked in the P-3 facility.
The evidence contains email and letters regarding paycheck practices which reflect that Tour 3 employees were to be provided their paychecks in accordance with Handbook F-101, Field Accounting Procedures (FAP). The FAP provides that Tour 3 payroll checks may be distributed after the local banks closed on Thursdays to employees whose regular tour of duty ended after local banks close on Fridays. Complainant works on Tour 1. He has not shown that other employees on Tour 1 were treated more favorably than he was. SDO-1 also stated in her affidavit that Complainant was advised that he could stop by the Supervisor's swing room and request his check when he clocked in for work in the P-1 facility where the checks were stored.4 She explained that there were no timeframe entitling an employee to their check within the first half hour of reporting for duty as Complainant was requesting.
Claims 3, 4
Complainant's claim 3, that SDO-1 accused him of pretending not to have heard her on two occasions, was denied by the supervisor. Complainant's claim 4 is that management failed to deal with a co-worker who blamed him for not responding to a page. We do not find that claims 3 and 4 state a claim, pursuant to 29 C.F.R. � 107(a)(1).
Having considered the claims individually, we do not find however that these actions were reasonably likely to deter protected activity. Moreover, the evidence does not establish that discriminatory animus motivated the actions.
To the extent that Complainant is alleging that he was subjected to harassment based on either disability or reprisal, we do not so find. Considering the record as a whole, Complainant has not shown that he was subjected to a discriminatorily hostile work environment under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Enforcement Guidance) (Mar. 8, 1994). We do not find that the workplace was "permeated with discriminatory intimidation, ridicule and insult that [was] sufficiently severe or pervasive to alter the condition of the victim's employment." Meritor, 477 U.S. at 65; Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). We have also recognized that the discrimination statutes do not seek to purge every workplace slight, unpleasantry, or insensitive comment. Personality conflicts, general workplace disputes, trivial slights and petty annoyances do not rise to the level of harassment. What the discrimination laws forbid is "behavior so objectively offensive" that it alters the conditions of an employee's employment. Oncale, supra.
Remedies and Relief
Complainant requested compensatory damages. Where, as here, discrimination is found, the agency must provide a complainant with a remedy that constitutes full, make-whole relief to restore him as nearly as possible to the position he would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Complainant v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994).
A complainant may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this "make whole" relief. 42 U.S.C. � 1981a(b)(3).
To receive an award of compensatory damages, Complainant must demonstrate that he has been harmed as a result of the agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons, denied, EEOC Request No. 05940927 (Dec. 11, 1995). In Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993), the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by a complainant explaining how he was affected by the discrimination. A complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. In order to establish an entitlement to compensatory damages, the burden is on a complainant to submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. See Complainant v. U.S. Postal Serv., EEOC Request No. 05980311 (February 26, 1999).
The Agency did not address the issue of relief, having found no discrimination. Accordingly, we remand this matter for consideration of compensatory damages.
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 decision in part. We REVERSE, in part, the Agency's decision that it did not fail to provide Complainant with a reasonable accommodation.
ORDER
Unless otherwise indicated, The Agency is ORDERED to complete the following remedial actions within one hundred and twenty (120) calendar days of the date this decision is issued:
1. Within one hundred and twenty (120) thirty (30) calendar days of the date this decision is issued, the Agency shall provide Complainant with a reasonable accommodation.
2. Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide Complainant notice to provide evidence in support of his claim for compensatory damages. The Agency shall complete its investigation of the claim for compensatory damages within sixty (60) days of the date when it receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110. Complainant shall cooperate with the Agency's investigation of her claim.
3. The Agency shall provide at least four hours of training regarding disability discrimination and reasonable accommodation to the Plant Manager and any other managers and supervisors at the Grand Rapids facility.
4. The Agency shall consider taking appropriate disciplinary action against the Plant Manager. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the Plant Manager has left the Agency's employment, then the Agency shall furnish documentation of his/her departure dates. Training is not considered discipline.
The Agency shall submit a report of compliance, as provided in the statement below entitled "Implementation of the Commission Decision." The report of compliance shall provide a clear explanation of any actions which it has taken and documentation in support.
POSTING ORDER (G0914)
The Agency is ordered to post at its Grand Rapids Post Office, copies of the enclosed 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 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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). 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
01/25/18
__________________
Date
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.
2 Complainant alleged reprisal for claims 2-5 only.
3 Complainant had a prior settlement agreement with the Agency but notes that he is not alleging a settlement breach. See 29 C.F.R. � 504(c); Kaplan v Donley, EEOC Appeal Nos. 0120130345, 0120131028 (Apr. 26, 2013)(settlements are not ad infinitum agreements).
4 Complainant worked in the P-3 facility.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120162002