0120110456
01-05-2012
Erin K. Grove, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Erin K. Grove,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120110456
Hearing No. 532-2009-00134X
Agency No. 4C-430-0024-09
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s September 23, 2010 final order concerning
her 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., the Pregnancy
Discrimination Act (PDA), 42 U.S.C. § 2000e(k) (1978), 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 final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a City Letter Carrier at the Agency’s Worthington Station in Columbus,
Ohio. In Fall 2008, Complainant submitted documentation to her manager
(M1) indicating that she had a 25-pound lifting restriction in relation
to her pregnancy. On January 5, 2009, Complainant was sent to the
Beechwold station to deliver a route. Despite being previously told
to inform others of her restrictions, Complainant testified that she
carried mail beyond her lifting restrictions at the Beechwold station
without informing anyone.
On January 6, 2009, Complainant called the acting supervisor (AS) at the
Worthington Station and informed her that she would be out sick that day.
Complainant testified that she was unable to work because of severe
back pain from the route she carried the day before. AS explained to
Complainant that she would have to bring in medical documentation in
support of her absence. Complainant responded that it would not be a
problem since she had an appointment with her physician for prenatal care
that day. AS testified that Complainant did not mention anything about
sustaining an injury the previous day. On January 7, 2009, Complainant
returned to work and submitted medical documentation to M1.
On January 14, 2009, the acting manager (AM) conducted a pre-disciplinary
interview (PDI) with Complainant regarding her failure to maintain a
regular work schedule. During the PDI, Complainant informed AM that
her absence on January 6, 2009, was due to a back injury she sustained
on January 5, 2009 while working at the Beechwold station. Complainant
indicated that even though she was aware that she was required to report
accidents immediately, she did not report the injury as required under
the Agency’s regulations. AM informed Complainant that she would be
issued a Notice of Removal for not reporting the accident. M1 concurred
with the issuance of the Notice of Removal. That same day, M1 took
Complainant to urgent care because she was concerned for her safety.
On April 3, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of disability (lower
body strain and pregnancy) and in reprisal for prior protected EEO
activity when on or about January 14, 2009, Complainant was given a
pre-disciplinary interview and subsequently issued a Notice of Removal
on February 11, 2009.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing and the AJ held a hearing on June 29, 2010,
and issued a decision on September 10, 2010.
In her decision, the AJ initially determined that Complainant had failed
to establish a prima facie case of discrimination on the alleged bases.
Nonetheless, the AJ assumed arguendo that Complainant had established
a prima facie case of discrimination and found that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, AM testified that she conducted the PDI to discuss
Complainant’s failure to maintain a regular work schedule and issued her
the Notice of Removal when it was learned that Complainant was injured
on duty and did not report it as required under Agency regulations.
Further, as a transitional employee, Complainant was not entitled to
progressive discipline. The AJ noted that Complainant’s removal
was sustained at Step B of the grievance procedure. The AJ determined
that Complainant had presented no evidence that the Agency’s reasons
were pretextual. As a result, the AJ found that Complainant had not
been discriminated against as alleged. The Agency subsequently issued
a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant notes that the AJ failed to address her
pregnancy discrimination claim. Further, Complainant contends that M1
harassed her based on her pregnancy and prior protected EEO activity.
Specifically, Complainant alleges that M1 forced her to go to urgent
care for an examination and violated her Health Insurance Portability
and Accountability Act (HIPAA) rights. Further, Complainant argues that
she was wrongly terminated for failing to report an accident because
there was no accident; rather, she was injured on the job. Accordingly,
Complainant requests that the Commission reverse the final order.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Universal Camera Corp. v. Nat'l Labor Relations Bd.,
340 U.S. 474. 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or me testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment
As an initial matter, the Commission agrees with Complainant that the AJ
erred in not addressing Complainant’s pregnancy discrimination claim.
The Pregnancy Discrimination Act, 42 U.S.C. 2000e(k), which was enacted in
1978, states that discrimination on the basis of “pregnancy, childbirth
or related medical conditions” constitutes sex discrimination under
Title VII. Pregnancy is not a “disability” for purposes of the ADA,
and employment discrimination claims based on pregnancy are covered
by Title VII. The Commission recognizes that there are circumstances
under which pregnancy complications can substantially limit a major life
activity and therefore rise to the level of a disability. See Stewart
v. U.S. Postal Serv., EEOC Request No. 05960071 (Dec. 18, 1996; 29
C.F.R. 1630 APP. 1630.2(H); Definition of the Term “Disability,”
EEOC Compliance Manual Section 902, 902-9 (Mar. 14, 1995). There is no
evidence in the record to indicate that Complainant’s condition included
such circumstances. However, the Commission presumes, for the purposes
of analysis, that Complainant was an individual with a disability.
In addition, the Commission notes that claims brought under the PDA are
examined using the traditional disparate treatment analysis. Bernardi
v. U.S. Postal Serv., EEOC Appeal No. 01954090 (Aug. 21, 1997).
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furuco Constr, Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981).
Upon a review of the record, the Commission finds that the AJ’s finding
of no discrimination and reprisal is supported by substantial evidence.
The Commission concurs with the AJ's finding that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
AM testified that the purpose of the PDI was to address Complainant’s
unsatisfactory attendance. Hr’g Tr., at 117. During the course of
the PDI, Complainant stated that her absence on January 6, 2009 was
because she suffered an injury while working at the Beechwold station.
Id. at 119. Complainant indicated to AM that she did not report the
injury even though she was aware of the Agency’s rules regarding
reporting injuries and accidents. Id. at 120. AM testified that she
included Complainant’s failure to report an injury/accident in the PDI
and then proposed her removal, with which M1 concurred. Id. at 121-22.
The Commission finds that the AJ's determination that Complainant failed
to establish pretext is supported by substantial evidence in the record.
Complainant argued that M1 violated her privacy and HIPAA rights when
M1 took her to urgent care and followed her into the examination room.
The Commission notes that allegations regarding violations of HIPAA
are not within the jurisdiction of the Commission. In addition,
Complainant contends that she did not report an accident because there
was no accident. The record is clear that Complainant suffered an
injury at the Beechwold station and was aware that the Agency’s
policies required employees to report all injuries and accidents.
Further, as a transitional employee, Complainant was not subject to
progressive discipline. The Commission finds that the record and facts
gleaned at the hearing and Complainant’s contentions on appeal fail
to prove any evidence purporting to show the Agency’s actions were
pretext for disability, sex, or reprisal discrimination. Accordingly,
the Commission discerns no basis to disturb the AJ’s decision.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final Agency order because
the Administrative Judge’s ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 5, 2012
Date
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0120110456
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110456