Hallie X.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Apr 25, 2017

0120150711 (E.E.O.C. Apr. 25, 2017)

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

Hallie X.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120150711

Agency No. 1J-603-0034-14

DECISION

On December 3, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s October 29, 2014, final decision concerning her 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. For
the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full-Time Mail
Processing Clerk at the South Suburban Processing and Distribution Center located in Bedford
Park, Illinois. On June 9, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of disability (right shoulder and bilateral carpal tunnel
hand pain) and in reprisal for prior protected EEO activity when on January 21 and 22, 2014,
her supervisor (S1) told her that she could not work overtime in the manual section due to her
medical restrictions.

Following 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). When Complainant did not request a hearing within the time frame provided in 29

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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C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

FACTUAL BACKGROUND

Complainant was first diagnosed in 2002 with right shoulder and bilateral carpal tunnel hand
pain, which was permanent. On October 20, 2009, Complainant received a full-time modified
job working in the security department and answering phones with the following restrictions:
(a) no more than five pounds lifting/carrying for six to eight hours daily; (b) climbing no more
than four to six hours daily; (c) bending/stooping no more than four to six hours daily; (d)
twisting/walking no more than six to eight hours daily; and (e) no pulling/pushing, fine
manipulation, reaching above the shoulder or operating machinery.

The duties to be performed in the modified job were: (a) observe television monitors scanning
different sections of the building and property; (b) observe and control employee and visitor
access to building, ensuring the use of official postal identification badge or issuing a
temporary badge upon completion of daily sign in log; (c) provide information to employees
and visitors; (d) answer phones; (e) observe and report all unusual circumstances to the
Manager, Distribution Operations and the Maintenance Supervisor on duty.

On January 21 and 22, 2014, S1 did not permit Complainant the option of working overtime in
the Manual Operations Section (MOS). Complainant was advised that the reason she was not
permitted to work overtime was because the work fell outside her medical restrictions.
However, Complainant asserts that the overtime work was within her medical restrictions.
The Mail Processing Clerk must be physically able to efficiently perform the duties of the
position, which require arduous exertion involving prolonged standing, walking, bending, and
reaching, and may involve the handling of heavy containers of mail and parcels weighing up to
70 pounds.

It is undisputed that Complainant was on an overtime desired list for the Automation Section,
not the MOS. The record shows that on January 21 and 22, 2014, overtime was scheduled for
MOS clerks. The overtime notice also states “this overtime schedule does not include
employees who cannot perform all core duties of the unit for which the overtime is called.”

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), 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) (explaining that the de novo standard
of 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
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parties, and . . . issue its decision based on the Commission’s own assessment of the record
and its interpretation of the law”).

We agree with the Agency’s decision finding that Complainant failed to prove by a
preponderance of the evidence that S1’s explanation was a pretext for disability or retaliatory
animus. Specifically, the record shows that Complainant was significantly restricted from
work requiring even a small degree of physical effort. The record also shows that the MOS
involved more physically intensive work than the Automation Section. The record further
shows that Complainant was not similarly situated to any of the comparators identified in the
record because the comparators all worked in the MOS. Further, there is nothing in the record
to suggest that any of the comparators had medical restrictions which prevented them from
performing the core duties needed to work overtime in the MOS, like Complainant. In
addition, the record is devoid of evidence of disability or retaliatory animus on the part of any
responsible management official.

We also find insufficient evidence of pretext in the record. Complainant argues, without
supporting evidence, that she is physically able to perform overtime work in the MOS. In
addition, Complainant asserts that she won the grievances filed on this matter and was given
make-up opportunities. The record contains Step 2 grievance decisions dated April 17 and 18,
2014, which were filed regarding the denial of overtime to Complainant on January 21 and 22,
2014. A review of these decisions reveals that the grievances were denied by the Agency.
The record also contains a January 16, 2014 grievance award summary that refers to a
previous date when Complainant was sent home from working overtime once it was discovered
that she was working outside her medical restrictions. Complainant received an award because
she was improperly permitted to start working the overtime and then sent home before her
overtime shift ended. Contrary to Complainant’s assertion, this grievance did not find that
Complainant was wrongly denied overtime or that such overtime at issue was within
Complainant’s medical restrictions. Accordingly, we agree with the Agency in finding that
Complainant failed to present evidence of pretext.

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 final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
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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 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. The requests 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 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. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
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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

April 25, 2017
Date