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

Equal Employment Opportunity Commission

Feb 12, 2019

0120172882 (E.E.O.C. Feb. 12, 2019)

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

Mari R.,1
Complainant,

v.

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

Appeal No. 0120172882

Hearing No. 440-2015-00040X

Agency Nos. 1J-602-0028-12 & 1J-602-0036-12

DECISION

On August 24, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
July 20, 2017 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

Introduction

At the time of events giving rise to this complaint, Complainant worked as a Supervisor,
Distribution Operations (SDO) at an Agency Processing and Distribution Center located in
Palatine, Illinois.

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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On October 13, 2012, Complainant filed three EEO complaints, together alleging that the
Agency discriminated against her on the bases of race (Indian), national origin (Indian), sex
(female), religion (Hindu), color (Brown), disability (on-the-job injuries - right knee
chondromalacia and left knee replacement), age (53), and reprisal for prior protected EEO
activity when:

1. between June 29, 2012 and January 29, 2013, management instructed
Complainant not to return to work until notified, due to her medical
restrictions, and
2. on May 24, 2012, management did not give Complainant Saturday/Sunday or
Sunday/Monday as nonscheduled days and assigned her the work of three to
four supervisors.2

The Agency accepted the incidents alleged in claim (1) for investigation.

Investigation

During the EEO investigation, Complainant stated that she submitted her medical restrictions (no
stair climbing, no squatting, no kneeling, and the need for a five-minute break each hour for both
knees) to Health Resource Management (HRM) and the next day she called to find out what time
she should report to work. Complainant stated that the Plant Manager (S1) informed her not to
report to work until notified by the Agency. Complainant stated that she requires breaks while
working. Complainant alleged that the Agency had an obligation to provide her limited duty, but
treated her disparately instead.

The Plant Manager, S1, stated, about June 29, Complainant submitted medical restrictions, and
he, HRM, and the Agency’s Labor Department determined that the Agency could not
accommodate Complainant’s restrictions. S1 stated that an SDO has to oversee the processing
and distribution of mail in a plant environment. He stated SDOs ensure that mail committed for
delivery is timely and properly processed. S1 stated mobility is critical to perform SDO duties
because the supervisor must work with multiple crews and mail flow. S1 stated that the Agency
inquired several times about the frequency of breaks needed by Complainant.

2 We note that the Agency docketed the three complaints as 1J-602-0028-12 (0028), 1J-602-
0035-12 (0035), and 1J-605-0036-12 (0036). Complaint 0028, which pertains to claim (2) based
on disability solely, was originally part of a class action. It was determined later that individual
processing was appropriate and the matter was held in abeyance pending class complaint
processing. Complaint 0036 pertains to claim (1), and was originally viewed as a “mixed” case
matter. The Agency identified claim (2), based on all alleged bases other than disability (race,
national origin, sex, religion, color, age, and reprisal), as Complaint 0035. The Agency
administratively processed Complaint 0035 and it resulted in an appeal to this Commission.
EEOC issued a decision for Complaint 0035 on November 14, 2014. The Commission’s decision
addressed the actions alleged in claim (2) on all alleged bases including disability.
Consequently, the only issue currently before the Commission is claim (1).
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In pertinent part, the record contains a Work Restriction Form, dated October 22, 2012, from
Complainant’s Physician stating:

Limited Duty. No stair climbing, kneeling, or squatting. Patient is to have
frequent breaks while standing and/or walking. Patient is to have a 5 minute
break every hour.

Post-Investigation

Following the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
(AJ) or an immediate final agency action. Complainant requested a hearing.

On July 12, 2017, the assigned AJ issued a decision without a hearing. The AJ found that
Complainant failed to show that the Agency’s actions were based on discriminatory motives.
The AJ held that the Agency tried to accommodate Complainant for some time based on her
medical restrictions and eventually by working with the Office of Workers’ Compensation
Programs was able to “cobble together” duties she could perform. The AJ stated that the
modified assignment required different duties and different nonscheduled days than
Complainant’s prior position. The AJ stated that Complainant failed to show a vacant, funded
position to which she could be assigned. On July 20, 2017, the Agency issued a final order
adopting the AJ’s finding of no discrimination. The instant appeal from Complainant followed,
without substantive comment.

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
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, 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. See 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, non-discriminatory reason for its actions. See Texas Department of
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Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

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, non-discriminatory reason for the 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. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).

Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination
based on race, national origin, sex, religion, color, disability, age, and reprisal, the Agency
articulated legitimate, nondiscriminatory reasons for, as of June 29, 2012, informing
Complainant not to return to work until it notified her to do so. We find further that
Complainant failed to show, by a preponderance of the evidence, that the articulated reasons are
a pretext for discrimination. Further, as to accommodation, the record does not reveal a funded
vacant position to which Complainant could be reassigned such that her medical restrictions
could be accommodated while the Agency’s business could continue without interruption or
delay and Complainant has not identified one.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision.

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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.
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.
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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

February 12, 2019
Date