Erin K. Grove, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionJan 5, 2012
0120110456 (E.E.O.C. Jan. 5, 2012)

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