Livia C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 29, 20190120180332 (E.E.O.C. Mar. 29, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Livia C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120180332 Hearing No. 440-2016-00043X Agency No. 4J606006515 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 25, 2017 Final Order concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a City Carrier, PS-01, at the Otis Grant Collins Station in Chicago, Illinois. On July 9, 2015, Complainant filed an EEO complaint alleging harassment and discrimination by the Agency based on her physical disability (bone spurs and left knee replacement in 2006, pending right knee replacement, hip pain diagnosed in July 2015) and reprisal for EEO activity related to this complaint when: 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. 0120180332 2 1. since July 2014, she was denied overtime, 2. on July 5 and 15, 2015, she was not paid for working, 3. on May 8, 2015, her supervisor assaulted her, 4. on July 7, 2015, she was denied a reasonable accommodation, and 5. on a date not specified, management requested medical documentation. Complainant further alleged discriminatory harassment based on a mental disability (anxiety and depression, diagnosed in March/April 2015) and reprisal when: 6. on or about July 6 - 8, 2015, she was assigned work outside her medical restrictions, 7. on dates not specified, she was not allowed to case other routes, and 8. since July 16, 2014, management made negative comments about her in front of her co-workers. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, and, over Complainant’s objection, AJ subsequently issued a decision by summary judgment in favor of the Agency. In reaching her decision, the AJ determined the following undisputed facts were established during the investigation: Complainant reported to two Supervisors, Customer Service, EAS-17, (“S1” and “S2”) as her first level supervisor, and to the Manager, Customer Service, EAS-21, (“M1”) as her second level supervisor. Complainant had named M1 and S1 in a prior EEO complaint. On March 18, 2015, Complainant received a Modified Job Offer as a Limited Duty Carrier (“LDC”), in order to meet her medical restrictions, which prevented her from walking up and down stairs repeatedly, or spending a prolonged amount of time walking or standing. Based on these restrictions, Complainant could only deliver to one building on her bid route. However, Complainant could still case mail, pull packages, and perform some customer service duties, such as answering the phone. 0120180332 3 Complainant contends that the LDC position was not a sufficient Modified Job Offer, as she sought a non-carrier position, which had significantly more responsibilities within her medical restrictions, with 8 hour shifts. Complainant nominally had 8 hours shifts as an LDC, but if no work was available after casing her bid route and making her limited deliveries, she would be sent home early. The remainder of her 8 hour shift was paid at a rate of 66% her hourly earnings through the Office of Workers Compensation Programs (“OWCP”). Complainant requested additional work, such as casing other carriers’ routes, and placed her name on the overtime desired list (“OTDL”). According to Complainant, S1 provided additional opportunities to work to other carriers, but frequently denied her requests, or offered work that he knew was outside her restrictions. S2 testified that S1 made an effort to divide the available work between Complainant and other employees with work restrictions. On May 8, 2015, Complainant and one of her colleagues (“C1”) engaged in a verbal altercation. C1 was on detail as an Acting Supervisor, Customer Service. By Complainant’s account, C1 came out of M1’s office, yelled at Complainant, got in Complainant’s face and stuck her finger in Complainant’s face so it touched Complainant’s nose. M1 separated Complainant and C1, but Complainant feared for her safety and called the police. Both the responding officer and M1 investigated the incident. Although M1 and other carriers heard raised voices, but there were no eye witnesses. C1 recounted that both she and Complainant raised their voices and pointed fingers but insisted that no physical contact occurred. Complainant, having been recently diagnosed with depression and anxiety, went on medical leave from May 10, 2015 through July 6, 2015. On June 17, 2015, M1 sent Complainant a “Relinquish Assignment Letter” which provided Complainant two weeks to submit medical documents indicating that she would be able to fulfill the requirements of her assigned bid route within the next six months. M1 testified that all carriers on limited duty routinely receive these letters, as the Agency requires a medical provider to confirm whether a carrier will be able to carry his or her route within 6 months. Complainant had received the same letter on September 5, 2014. The record also includes two “Relinquish Assignment Letters” sent by M1 to two other LDCs on February 14, 2015. On June 24, 2015, the Agency received Complainant’s new work restrictions from her doctor, which provided that Complainant could walk intermittently for up to 8 hours per day. Complainant was unaware of the specifics of the new restriction. On July 7, 2015, Complainant asked S1 for a mail cart as a reasonable accommodation. There was a shortage of carts, and S1 allegedly responded that it was not his responsibility to find Complainant a cart. Complainant notified her union representative and M1 that S1 denied her request. Approximately 35 to 40 minutes later, M1 obtained a cart for Complainant and Complainant was able to complete her deliveries without incident using the cart. 0120180332 4 On July 8, 2015, after developing hip pain that required medical attention, Complainant obtained new medical restrictions stating that she “must use cane, non-weight-bearing and limited standing/walking.” Complainant took sick leave on July 9 and 13, 2015. She worked only three more shifts, each no more than 3 hours per day due to lack of work within her restrictions. Complainant was on sick leave for the remainder of July 2015. Based on this evidence, the AJ concluded Complainant failed to prove discrimination as alleged. The Agency issued a Final Order adopting the AJ’s finding, and instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. (as revised, August 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment: Claims 1, 2, 6, and 7 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 0120180332 5 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). It is well established that the Agency, as the employer has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Burdine; Furnco. In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered into the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer at 1048. Claims 1 (denial of overtime), 7 (denial of work casing other mail routes), and Claim 6 (to the extent that Complainant alleges that S1 offered her assignments outside her medical restrictions, as a way to deny her overtime), all allege an adverse employment action of denial of opportunities to work. The Agency’s legitimate nondiscriminatory reasons for its actions in these claims were that S1 was exercising his discretion by dividing a limited amount of casing and overtime opportunities that met Complainant’s medical restrictions among other similarly restricted employees. Additionally, the Agency states that it acted in accordance its policies and with the Collective Bargaining Agreement (“CBA”) with the Union. With respect to S1 allegedly denying Complainant overtime opportunities (Claim 1), for the first quarter of 2015 (January, February and March) Complainant and three other LDCs with medical restrictions to include inability to repeatedly walk up and down stairs, signed up on the OTDL. One of the LDCs was ahead of Complainant on the seniority list. However, as the AJ’s Decision provides, Complainant worked overtime on multiple occasions. The record indicates that Complainant did not sign up for the OTDL for April, May, and June. Complainant was out on medical leave from May 10, 2015 through July 6, 2015, and she was out on sick leave for nearly all of July 2015 after injuring her hip on the job on July 8, 2015. On appeal, Complainant concedes that she was granted overtime on some occasions, but argues that the AJ’s examples were misleading. Complainant states that some of the instances the AJ cited were for when she only worked “a few minutes” of overtime, and she points out that simply being granted overtime hours on some occasions did not mean Complainant was not unfairly denied on other occasions. 0120180332 6 Among other things Complainant also argues that the attendance sheets do not reflect the days overtime was available. However, Complainant does not provide any evidence to support that she was denied overtime more often than other individuals with similar restrictions. Further, based on Complainant’s attendance during much of the relevant time frame, there is insufficient evidence to support disparate treatment. As for Claim 6, Complainant has not established that S1 required her to work outside of her medical restrictions. Rather, S1 “offered” Complainant carrier work in an optional context, when she requested more work, and there was no available work within her restrictions. Although mail casing work may have been available, S1 acted within his discretion when he declined to assign it to Complainant for the legitimate, nondiscriminatory reason that he sought to equitably distribute work to Complainant and other employees with medical restrictions. Claim 7 also concerns a finite amount of casing work to be allotted to multiple LDCs. S1 had a total of 5 carriers, including Complainant, with medical restrictions limiting their ability to deliver mails, thereby confining them to a limited amount of tasks such as mail casing. Complainant makes broad assertions that S1 unfairly distributed opportunities to case other mail routes. She notes that a few of the LDCs have routes that, unlike Complainant’s bid route, can be delivered within their restrictions, therefore they get more hours. It appears that for some of the relevant time frame some of the other LDCs were on sick leave, likely varying the availability of mail casing opportunities. Having reviewed the record, we are not convinced that S1’s distribution of mail casing assignments was discriminatory. For Claim 2, the Agency’s legitimate nondiscriminatory reason for failing to pay Complainant holiday pay for July 5, 2015 and for July 15, 2015, was “administrative error.” The Agency further explains that the oversight was not resolved sooner because M1 was not notified until Complainant initiated a grievance on the matter. Complainant does not dispute that once M1 was made aware of the nonpayment, she reviewed the matter and paid Complainant. Other than bald statements, Complainant provides no evidence to indicate that the Agency’s legitimate nondiscriminatory reason was pretext for discrimination. Reasonable Accommodation: Claims 4, 6 and 7 An agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations.2 See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agriculture, 2 M1 testified that she “got someone else’s cart for [Complainant] to use” because there is a shortage of carts, and “Budget won’t allow Management to purchase” additional carts. Therefore, we remind the Agency that budget is insufficient for establishing undue hardship when providing a reasonable accommodation, such as a hand cart. See Degnan v. United States Postal Serv., EEOC Appeal No. 01A53689 (Mar. 23, 2006); EEOC Notice No. 915.002. 0120180332 7 EEOC Appeal No. 0120120400 (Dec. 3, 2015). While Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Lynette B. v. Dep’t of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). In Claim 4, Complainant requested a cart as a reasonable accommodation, which, although not listed in her June 24, 2015 medical restrictions, was understood to be related to her known limitations. S1 improperly denied Complainant the accommodation. However, by Complainant’s own account, she received the requested accommodation shortly afterward, once she “got the union involved” and informed M1. Significantly, at no point was Complainant required to work without the reasonable accommodation. As previously discussed, we do not find Claim 6 violated Complainant’s right to a reasonable accommodation, as S1’s offer of overtime work outside her restrictions was not an assignment but was offered to Complainant as a voluntary activity if she thought she could do it. Likewise, for Claim 7, the Agency provided a legitimate nondiscriminatory reason for denying Complainant the opportunity to case other routes – that S1 was working to equitably divide the limited available work between the five employees with medical restrictions. The crux of Complainant’s accommodation claims seems to be that she was not provided with eight hours of work each day. While not expressly stated in her complaint, she may be asserting that she should have been reassigned to a position outside of the carrier craft where there was more work available within her medical restrictions. However, Complainant proffers no evidence that there was a vacant funded position available during the relevant time period to which she could have been reassigned. See Barnard v. United States Postal Service, EEOC Appeal No. 07A10002 (August 2, 2002) (complainant has an evidentiary burden in reassignment cases to present sufficient evidence to support a finding that, more likely than not, there was a vacant funded position, for which s/he was qualified and to which s/he could have been reassigned). Disability Related Inquiry: Claim 5 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.’” Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (July 27, 2000) (Enforcement Guidance on Employee Inquiries and Examinations) at 15. Claim 5, which states that “on a date to be specified, Management requested medical documentation,” is likely in reference to instances when Complainant called out sick, and the “Relinquish Assignment Letters.” 0120180332 8 The Agency has successfully demonstrated that the inquiries were ‘job related and consistent with business necessity.’ M1 testified that when an employee calls out, the system automatically notifies the employee that medical documentation may be required. Regarding the “Relinquish Assignment Letters,” the Agency demonstrated that the inquiry was based on “a reasonable belief, based on objective evidence, that [Complainant’s] ability to perform essential job functions will be impaired by a medical condition.” Complainant had not completed her bid route for over 6 months, and Complainant’s medical restrictions stated she could not repeatedly go up and down stairs, a requirement of her bid route. M1 testified that it is Agency-wide procedure to send the “Relinquish Assignment Letter” to all carriers who bid on their route and are already on limited duty. Such a request is also permitted in accordance with Article 13.4.F of the National Collective Bargaining Agreement (“CBA”) negotiated between the Union and the Agency, as the documentation is intended for a determination of whether Complainant would remain in a limited duty assignment. We find Claim 5 was not a prohibited inquiry under the Rehabilitation Act. Alternately, Complainant has not established that the Agency’s requests constituted harassment or disparate treatment, given the legitimate nondiscriminatory reason of “business necessity.” Further, two of Complainant’s comparators received nearly identical Relinquish Assignment Letters” from M1 in February 2015. Harassment: Claims 3 and 8 It is well-settled that harassment based on an individual’s disability status or EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). Although Complainant’s membership in protected classes is undisputed, she has not satisfied the other elements of a prima facie case for a harassment/hostile work environment, which are necessary for a finding of employer liability. To prove harassment, 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 based on her membership in one or more protected classes. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). As a preliminary matter, for reasons discussed in the previous sections, we will not include Claims 1, 2, 4, 5, 6 and 7 in our harassment analysis. There is no evidence that discrimination or retaliatory animus played any role in these events. For Claim 3, even assuming, arguendo, that during the May 8, 2015 assault, C1 physically touched Complainant’s nose while pointing her finger in Complainant’s face, she is describing an isolated incident. 0120180332 9 Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a hostile work environment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health & Human Serv., EEOC Request No. 05940481 (Feb. 16, 1995). On appeal, Complainant argues that by virtue of C1’s position of authority, the incident rose to the level of severity necessary to constitute harassment. We disagree. C1 was not Complainant’s direct supervisor, and had no control over Complainant’s work assignments or appraisals. Additionally, this is the only incident of alleged harassment by C1. Complainant does not dispute that M1 took immediate and effective action, and also appears to have resolved the matter through the grievance procedure. Similarly, for Claim 8, Complainant offers only a few isolated incidents, each involving a different individual, where a negative comment was allegedly made about her disability or EEO activity. Some of the alleged comments were months apart, and fall outside the time frame of this complaint. Moreover, none of the comments were followed by a concrete action harming Complainant. Claim 8 simply does not describe actions that are so severe and pervasive to constitute harassment. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s decision. 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. 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. 0120180332 10 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. 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 March 29, 2019 Date Copy with citationCopy as parenthetical citation