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

Equal Employment Opportunity Commission

May 10, 2017

0120170312 (E.E.O.C. May. 10, 2017)

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

Kasie L.,
Complainant,

v.

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

Appeal No. 0120170312

Hearing No. 471-2014-00054X

Agency No. 4J-481-0110-13

DECISION

On October 26, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 27, 2016, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a full time Carrier at
the Agency’s Post Office in Farmington, Michigan. After having received several customer
complaints about Complainant, an acting supervisor (S1), conducted an “investigative interview”
with Complainant at which Complainant’s union representative was in attendance. Two days
later, Complainant requested a private meeting with S1. During that meeting, according to S1,
Complainant made threats against her co-workers including suggesting that she might “come in

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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and shoot everyone.” As a result, Complainant was required to submit to a psychiatric fitness for
duty examination. Following that examination, Complainant was suspended from duty.2

On August 26, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Asian), sex (female), religion (Muslim), and age
(60) when:

1. On or about April 7, 2013, she was disciplined for not being "jovial" at work;

2. On May 7, 2013, she received a letter(s) scheduling her for a Fitness for Duty
Exam; and

3. On May 14, 2013, she was removed from work.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. After both parties submitted motions for a decision without a hearing, the
AJ assigned to the case issued a decision, granting the Agency’s motion and denying
Complainant’s motion, on September 20, 2016. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). The Commission's regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g).

The Supreme Court has held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In
ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but
rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the

2 Complainant filed a union grievance successfully challenging the Agency’s directive that she
submit to a fitness for duty examination. The grievance arbitrator’s finding was based on the
Agency’s failure to comply with the requirements of the collective bargaining agreement and did
not address the merits of the discrimination claims asserted in the instant complaint.
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non-moving party must be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party’s favor. Id. at 255. 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.

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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where 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); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Claim #1 (Subjected to Discipline for Not Being “Jovial”)

Complainant alleges that she was disciplined for not being “jovial” in her interactions with
customers. The record shows that Complainant was criticized by her supervisor for having been
the subject of customer complaints about her performance, including one from a customer who
complained that she did not appear to be jovial while delivering her route. In her affidavit,
however, Complainant admits that she was never subjected to discipline for that reason. ROI at
57. Being the subject of criticism, without more, is insufficient to state a claim for relief. The
Commission has held that a verbal reprimand unaccompanied by concrete action does not render
an employee aggrieved. See Banks v. Department of Health and Human Services, EEOC
Request No. 05940481 (February 16, 1995).

Claim #2 (Fitness for Duty Examination)

The Agency explains that Complainant was required to undergo a psychiatric fitness for duty
examination because she had made repeated statements threatening to commit acts of violence
against her co-workers. ROI at 103, 139. The AJ correctly found that this was a legitimate,
nondiscriminatory reason for the Agency requiring a fitness for duty examination.

Complainant has failed to adduce evidence that the reason was a pretext designed to conceal
discriminatory animus. Complainant does not directly dispute that she made the statements in
question. Indeed, in her affidavit and pleadings supporting her Motion for Summary Judgment
and opposing the Agency’s Motion for Summary Judgment, Complainant ignores the question of
whether she made the threatening statements in question. Without a clear refutation by
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Complainant of the Agency’s evidence, the record is insufficient to raise an issue of material fact
as to the truth of the Agency’s reason for requiring a fitness for duty examination.3

Claim #3 (Removed From Work)

According to the Agency, it has not allowed Complainant to return to work because she has
failed to comply with medical directives of the physician who examined her. Specifically, she
has failed to provide evidence that she has received treatment for the condition that made her
unfit to return to work. ROI at 108; AJ Decision at 29. This is a legitimate, nondiscriminatory
reason for the Agency’s action. Complainant does not dispute that she has not complied with the
medical directives in question. She has failed to adduce evidence that the Agency’s reason for
its action was a pretext designed to conceal discriminatory animus.

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 order.

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:

3 Under the Rehabilitation Act, employers may make disability-related inquires or require
medical examinations of employees only if they are job-related and consistent with business
necessity. 29 C.F.R. §§ 1630.13(b), 1630.14(c). Generally, a disability-related inquiry or
medical examination of an employee may be “job-related and consistent with business necessity”
when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s
ability to perform essential job functions will be impaired by a medical condition; or (2) an
employee will pose a direct threat due to a medical condition.” See Enforcement Guidance on
Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (July 27,
2000)(Enforcement Guidance). “Direct threat” means a significant risk of substantial harm that
cannot be eliminated or reduced by reasonable accommodation, 29 C.F.R. § 1630.2(r). It is the
burden of the employer to show that its disability-related inquiries and requests for examination
are job-related and consistent with business necessity. Enforcement Guidance, at 15-23. In light
of the evidence of Complainant’s threatening statements, we conclude that the Agency has met
that burden here.

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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 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).
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FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

May 10, 2017
Date