[Redacted], Herb F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Dec 7, 2020

Appeal No. 2019005480 (E.E.O.C. Dec. 7, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herb F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2019005480 Hearing No. 570-2017-01077X Agency No. 1K-221-0002-17 DECISION On July 26, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 18, 2019 final action concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Supervisor of Distribution Operations at the Agency’s Northern Virginia Processing and Distribution Center (P&DC) in Merrifield, Virginia. The Manager of Distribution Operations (MDO) was his supervisor. 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 2019005480 On January 19, 2017, Complainant filed the instant formal complaint. Complainant claimed that he was subjected to harassment/a hostile work environment based on his disability (deaf) when: 1. since October 3, 2016, he has not been permitted to work 6 days a week; 2. since October 24, 2016, the District Accommodation Committee (DRAC) has failed to schedule an interactive meeting to address his reasonable accommodation request; 3. on November 1, 2016, he was not provided an interpreter for the supervisor yellow belt training; 4. on November 3, 2016, he was harassed and treated differently than the other supervisors; 5. on November 21, 2016, the District Disability Coordinator failed to meet with him for his annual review; 6. on January 11 and 12, 2016, he was not provided with an interpreter to complete an accident report for one of his employees; and 7. on February 3, 2017 and ongoing, his manager has not responded or acknowledged his emails. 2 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On July 12, 2019, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final action adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 2 The record reflects that claims 6 and 7 were later amended to the instant formal complaint. 3 2019005480 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. However, we have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant failed to establish a genuine dispute that required a hearing. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. To prove his harassment/hostile work environment claim, Complainant must establish that he 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 a protected basis - in this case, his disability. Only if Complainant establishes both of these elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claim 1, Complainant asserted that since October 3, 2016, he has not been permitted to work six days a week. The MDO stated that all the supervisors, not just Complainant, were scheduled to work five days a week. She further stated that when additional coverage is needed, supervisors may volunteer to work an additional day, such as over a holiday. Complainant did not produce any evidence that he was treated less favorably than the other similarly situated supervisors. Regarding claim 2, Complainant claimed that since October 24, 2016, the DRAC has failed to schedule an interactive meeting despite his request for one. The record shows that since 2014, Complainant has been provided with a reasonable accommodation in the form of a combination of Video Remote Interpreting (VRI) interpreters and live interpreters. The record establishes that on October 24, 2016, Complainant contacted the District Disability Coordinator (Coordinator) and requested a meeting with the DRAC. The Coordinator forwarded Complainant’s request to the DRAC Chairperson. During the investigation into his complaint, Complainant acknowledged that the requested DRAC meeting did occur on December 5, 2016. Therefore, he stated that his issue was not that no DRAC was held, but that it was scheduled 42 days after his request instead of 30 days. The DRAC Chairperson explained that there was a delay in scheduling due to a misunderstanding. He stated that he assumed the Coordinator scheduled meetings which included deaf and hard-of-hearing employees. 4 2019005480 The DRAC Chairperson stated that when the Coordinator asked him why he had not scheduled the meeting, “we clarified it was my responsibility to schedule all DRAC meetings, including ones with hearing disabilities. I sent an email to [Complainant] on November 29, 2016, apologizing for the delay and scheduled the meeting for the first available date.” Regarding claim 3, Complainant alleged that on November 1, 2016, he was not provided an interpreter for the November 1, 2016 Yellow Belt training for all supervisors at the Merrifield P&DC. The Manager-In Plant Support was in charge of retaining a live interpreter for the training. He had never scheduled a live interpreter before and called the interpreter service to schedule with less than 24 hour notice. The interpreter service informed the Manager-In Plant Support no live interpreter was available at that specific time. The Manager-In Plant Support immediately scheduled an interpreter for the following day. On the same day, November 1, 2016, Complainant elected to go home and not work at all. Despite going home, Complainant was still paid for a full work day. Complainant attended the rescheduled Yellow Belt training the next day, November 2, 2016, where a live interpreter was provided. Regarding claim 4, Complainant alleged that on November 3, 2016, he was harassed and treated differently than the other supervisors. The AJ noted that after completing 6 hours of Yellow Belt training on November 2, 2016, Complainant returned to work for 2 hours that day to complete his 8-hour shift. Complainant had a concern that the day before, on November 1, 2016, several supervisors went home after the training was over, instead of going back to work. However, on November 1, 2016, Complainant received 8 hours of pay, despite going home for the entire day due to the interpreter scheduling issue. The AJ noted with his 8 hours of paid leave on November 1, 2016, Complainant received more paid leave during the training than his non-deaf counterparts who only received 2 hours of paid leave on November 1, 2016, after the 6-hour training ended. Regarding claim 5, Complainant stated that on November 21, 2016, the Coordinator failed to meet with him for his annual review. The Coordinator was scheduled to meet with Complainant but missed the meeting because it had not been entered in his calendar. The Coordinator stated that he apologized to Complainant for missing the meeting and asked to reschedule. The Coordinator stated that during December 2016, he and Complainant continued to correspond by email concerning Complainant’s accommodation. He stated that he spoke with Complainant “about meeting with him and he told me that he could not meet with me because it was the busiest time of the year and that he was working long hours and 6 to 7 days a week.” The Coordinator stated that on January 9, 2019, he emailed Complainant to get up another meeting, wiring “Now that peak season is over, I would like to meet with you for your yearly review…please let me know when would be a good time for us to get together.” Complainant did not respond until 8 days later with a general email that he had met the Coordinator’s son who is an interpreter. Complainant ended the email with “please let me know when we can meet for annual leave.” The Coordinator stated that he responded immediately stating “any day this week is fine with me.” 5 2019005480 Furthermore, Complainant did not respond and the Coordinator followed up again on January 19, 2017. Complainant finally responded that he was on leave and was not available until the following week. The Coordinator scheduled their meeting for February 2, 2017. However, Complainant cancelled the February 6, 2017 meeting stating he was sick. The Coordinator asked Complainant to schedule the meeting again when he was well. Regarding claim 6, Complainant asserted that on January 11 and 12, 2016, he was not provided with an interpreter to complete an accident report for one of his employees. Complainant stated that on either January 11 or 12, 2017, during the night shift, he called an outside Video Relay Interpreter (VRI) service to obtain an interpreter to complete an accident report for an employee. However, the VRI service informed him that an interpreter was not available at that moment. Complainant did not reschedule for when an interpreter was available. Regarding claim 7, Complainant alleged that on February 3, 2017 and ongoing, his manager has not responded or acknowledged his emails. The MDO, however, asserted that she responded to Complainant’s email. Specifically, the MDO stated, “I explained to the complainant that we would review the training for automation once he returned from sick leave. He’s still out on sick leave FMLA.” In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his disability. A case of discriminatory hostile work environment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected basis. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Reasonable Accommodation Under the Commission’s regulations, an agency 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 accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Here, Complainant claimed that he was denied reasonable accommodation during the relevant period. Complainant requested a full-time interpreter which was denied. Substantial record evidence supports the Agency’s finding that Agency management accommodated Complainant’s needs in order to perform the functions of his position. There is no evidence of record to dispute this assertion. Complainant is entitled to a reasonable accommodation, but not necessarily the accommodation of his choice. Here, the evidence supports the AJ’s conclusion that Complainant was provided an effective accommodation. 6 2019005480 Finally, we note that on appeal, Complainant filed a Motion to Consolidate the instant case and another case before the AJ. However, we find inadequate justification to support the need for consolidation and deny the motion. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 7 2019005480 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 7, 2020 Date