Alyce R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Feb 5, 2019

0120172815 (E.E.O.C. Feb. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alyce R.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120172815

Agency No. 4K-280-0026-17

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 26, 2017,
final decision concerning an equal employment opportunity (EEO) complaint claiming
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.

BACKGROUND

During the period at issue, Complainant worked as a Rural Carrier Associate/Service Regular
Route, GS 5 at the Agency’s W.T. Harris Station in Charlotte, North Carolina.

On February 16, 2017, Complainant filed a formal EEO complaint. Complainant claimed that
the Agency subjected her to discrimination and a hostile work environment based on race
(Caucasian), sex (female), disability (Hashimoto’s Disease and concussion), and in reprisal for
prior protected EEO activity when:

1. since, August 2016, Complainant’s request for a light duty assignment has been
denied;

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.
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2. on August 13, 2016, and date(s) to be provided, Complainant has been required to
provide medical documentation for absences, or documentation which she submitted
was deemed unacceptable;

3. on August 28, 2016, Complainant became aware that information regarding updating
her medical documentation regarding her chronic health condition was written on the
work schedule;

4. on dates to be provided, Complainant has been spoken to in a demeaning manner; and

5. on November 2, 2016, and date(s) to be provided Complainant has not been paid
correctly.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge or a final decision within thirty days of receipt of the correspondence. Complainant
requested an Agency final decision.

On July 26, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b).

The Agency indicated that Complainant’s formal complainant included an additional claim
which the Agency dismissed in its March 9, 2017 partial acceptance of Complainant’s formal
complaint. The Agency affirmed its dismissal of this claim as a collateral attack on a proceeding
in another forum.2

The Agency dismissed claim 5 on procedural grounds.3 However, for the sake of argument and
assuming it should be adjudicated on its merits, the Agency also discussed the merits of this
claim.

The Agency found no evidence of discrimination for the discreate acts included in claims 1 and
5.

The Agency found no evidence of discriminatory harassment for claims 2, 3, and 4.

2 On appeal, Complainant does not expressly challenge the Agency’s dismissal of this claim as a
collateral attack on the Department of Labor’s Office of Workers Compensation Programs
(OWCP) process. Therefore, we will not address this procedural ground further in our decision.

3 On appeal, Complainant does not expressly challenge the Agency’s dismissal of this claim for
failure to state a claim and as a collateral attack on a matter committed to another government
agency. Therefore, we will not address these procedural grounds further in our decision.
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The instant appeal followed. On appeal, Complainant, through her attorney, does not submit any
additional arguments or statements.

ANALYSIS AND FINDINGS

Reasonable Accommodation Request: Claim 1

Under the Commission's regulations, a federal agency may not discriminate against a qualified
individual based pm disability and is required to provide 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); EEOC’s Enforcement Guidance on Reasonable Accommodation
and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct.
17, 2002).

Complainant stated that she was first diagnosed with Hashimoto’s Disease in June 2016 and she
informed her supervisor (“S1”) (female, Caucasian) of this diagnosis in August 2016.
Complainant explained that she was also diagnosed with a concussion in October 2016 which
has resulted in reoccurring headaches and migraines.4

During the period at issue, Complainant was hired as a Rural Carrier Associate/Service. A copy
of Complainant’s position description states that the Rural Carrier Associate/Service functional
purpose includes “cases, delivers, and collects mail along a prescribed rural route using a
vehicle.” Complainant’s duties and responsibilities include “deliver[ing] mail to customers
along a prescribed route and on a regular schedule by a vehicle.”

A duty status report, dated January 19, 2017, states that Complainant could not perform regular
work and had a clinical finding of “limited driving” due to her medical condition. The report
further stated that Complainant could only drive a vehicle 1 hour per day, opposed to her regular
6 hours per day driving requirement.

The record further supports that Complainant’s manager (“M1”) (male, African American) was
aware of Complainant’s disability and request for a limited work restriction.

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 Enforcement Guidance on Reasonable
Accommodation.

4 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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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). “Essential functions” are the fundamental
job duties of the employment position that the individual holds or desires. Id. § 1630.2(n).

Here, the accommodation Complainant requested (to case mail or go to Wells Fargo to count
spoiled postage) would not have enabled her to perform the essential functions of her Rural
Carrier Associate/Service position. Instead, the duties which Complainant requested were duties
assigned away from that position altogether. Reasonable accommodation is mainly designed to
enable an employee to perform the essential functions of the position of record. If that is not
possible, reassignment to a vacant, funded position can also be a required reasonable
accommodation. Here, however, there is no evidence that Complainant sought a reassignment to
another vacant funded position. Moreover, Complainant has not presented any evidence to
suggest that, more likely than not, there was another vacant, funded position available for which
she was qualified and could have been reassigned to during the relevant period.

For the reasons stated above, we conclude that Complainant failed to prove the Agency violated
its duty under the Rehabilitation Act to reasonably accommodate her disability.

Disparate Treatment: Claims 1 and 5

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
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Agency management articulated legitimate, nondiscriminatory reasons for its actions.

Regarding claim 1, M1 explained that Complainant’s medical status indicated that “she could not
perform her assigned duties as a rural carrier.” Specifically, M1 stated that Complainant’s work
restrictions put her “out of work due to driving restriction” and there was no work available to
meet Complainant’s work restriction needs.

M1 also testified that Complainant’s “medical document[ation] did not support Complainant’s
requests to count spoiled postage at the Wells Fargo or to case mail. M1 stated that one
employee was permitted to work at the Wells Fargo because this duty was part of the employee’s
assigned duties. Additionally, M1 indicated that another employee was granted a light duty
request because the work limitation did not interfere with the employee’s ability to perform her
“normal duties as a regular carrier.”

Regarding claim 5, M1 testifies that Complainant’s pay was denied by Injury Compensation.
M1 further denied responsibility in Complainant receiving incorrect pay on November 2, 2016.

Copies of Complainant’s rural pay adjustment requests indicate that Complainant’s received
continuation of pay for work hours related to her OWCP claim.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on her race,
sex, disability, and reprisal for prior protected EEO activity.

Hostile Work Environment: Claims 1 and 5

To establish a claim of discriminatory hostile environment 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 class; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

In other words, 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 basis – in this case her race,
sex, disability, and reprisal for prior protected EEO activity. Only if Complainant establishes
both of those elements – hostility and motive – will the question of Agency liability present
itself.
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Here, as discussed below, Complainant simply has provided inadequate evidence to support her
claim that her treatment was the result of her race, sex, disability, or reprisal for prior protected
EEO activity.

As discussed above, we found that Complainant did not establish, with respect to claims 1 and 5,
a case of discrimination on any of her alleged bases. Further, we conclude that a case of
harassment is precluded for these claims based on our finding that Complainant failed to
establish that any of the actions taken by the agency were motivated by her protected bases. See
Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

Hostile Work Environment: Claims 2, 3, and 4

As already noted, to establish a claim of harassment, Complainant must show that: (1) she is a
member of the 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 class; (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. Humphrey v. U.S. Postal Service,
EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11 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, 510 U.S. at 21. The
harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation “requires
careful consideration of the social context in which particular behavior occurs and is experienced
by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-
discrimination laws are not a “general civility code.” Id.

We find that remaining claims 2, 3, and 4, also fail to support a finding that the Agency
subjected Complainant to discriminatory harassment.

Regarding claim 2, M1 stated that Complainant had “unsatisfactory attendances” and was
required to provide medical documentation.

Regarding claim 3, M1 explained that no personal information or medical information was
written. M1 acknowledged, however, that abbreviations for the various types of leave (i.e. AL –
annual leave; SL – sick leave; FMLA – family medical leave, LWOP – leave without pay) were
used for documentation purposes.

S1 testified that to her knowledge, FMLA had never been written on the work schedule.

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Copies of the rural carrier work schedules from August 6, 2016 through August 12, 2016 and
from August 20, 2016 through August 26, 2016 do not include a FMLA notation. There are two
notations of “SL” on the schedule for two different employees, none of whom are Complainant.

Regarding claim 4, S1 testified that she asked Complainant to “step away” during S1’s phone
conversation with a downtown supervisor. S1 explained that Complainant was “within inches”
of her while on the phone and Complainant’s “interjections during conversations” disrupted S1’s
ability to hear. S1 stated that she shared with Complainant the content of her discussion with the
downtown supervisor.

M1 testified that he was out of the office on vacation during the period this alleged incident took
place.

We find that considering these allegations, even if true, Complainant has not shown evidence
that considerations of her race, sex, disability, or retaliatory animus motivated management’s
actions toward Complainant. We further find that the incidents Complainant alleges were not
sufficiently severe or pervasive as to constitute hostile work environment/harassment under
Commission regulation. The incidents involved are of a type that typically arise out of
workplace conflicts or communications. However, EEO laws are not a civility code. Rather,
they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review of the record, including
Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the
Agency discriminated against her as alleged.

Accordingly, we AFFIRM the Agency’s final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.

Because we affirm the Agency’s finding of no discrimination on all the subject claims, we find it
unnecessary to address the Agency’s procedural dismissal of claim 5.

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.
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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.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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

February 5, 2019
Date