[Redacted], Lauren T., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Feb 9, 2023

Appeal No. 2022002297 (E.E.O.C. Feb. 9, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lauren T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022002297 Hearing No. 550-2020-00357X Agency No. 4F-945-0104-19 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 17, 2022, finding no discrimination concerning her 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales, Services, Distribution Associate (SSDA), PS-6, at the Agency’s Santa Cruz Main Post Office in Santa Cruz, California. The record indicates that the Agency framed Complainant’s complaint, filed on November 27, 2019, which was amended, as alleging harassment based on disability 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. 2022002297 2 1. Beginning on or about June 13, 2019, through August 19, 2019, and continuing, management did not follow her medical restrictions or provide work accommodations; 2. Beginning on or about June 13, 2019, through August 19, 2019, and continuing, management required her to provide updated medical documentation; 3. Beginning on or about June 13, 2019, through August 19, 2019, and continuing, management constantly followed, monitored, watched her and isolated her from coworkers; 4. Beginning on or about August 19, 2019, and continuing, management singled her out and gave her instructions that her coworkers did not have to follow; 5. Beginning on or about August 19, 2019, and continuing, she was not allowed to perform all the duties of her clerk bid position; 6. Beginning September 9, 2019 to September 27, 2019, and December 2, 2019 to January 2020, she was not properly paid annual leave and/or sick leave; 7. On or about August 19, 2019, and other unspecified date(s), her request for a union representative was not granted; and 8. On October 3, 2019, management removed money that she was accountable for and gave it to another employee while also changing the lock and forcing her to sign an audit for money that was counted by someone else. The record indicates that on December 30, 2019, the Agency accepted claims 1 - 6 for investigation but dismissed claim 7 for failure to state a claim, pursuant to 29 C.F.R. §1614.107(a)(1). Therein, Complainant was notified to provide a written response if she disagreed with the accepted claims as defined above. Complainant did not respond.2 On February 6, 2020, the Agency, accepting amended claim 8, informed Complainant to provide a written response if she disagreed with the accepted claims as defined. Complainant did not respond. At the conclusion of the investigation of the complaint, Complainant requested a hearing but later withdrew the request. The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant indicated that she had multiple mental health disorders which were diagnosed in April 2005, including anxiety, panic disorder, post-traumatic stress syndrome, sleep disorder, and asthma (Complainant characterized asthma as a mental disability). 2 Complainant did not contest the dismissal of claim 7 on appeal (and we see no error in the dismissal) so we shall not address claim 7 in this decision. 2022002297 3 Complainant also indicated that she was diagnosed with her physical medical conditions in December 2008, including chronic low back pain with sciatic neuritis and bilateral chronic foot pain with posterior tibial tendon dysfunction with arthritis. Complainant stated that she was able to perform all of her assigned duties within an eight-hour time frame and within the confines of her current workstation. Specifically, Complainant indicated that she could only work eight hours per day, forty hours per week, with scheduled days off and the workstation by the door. Complainant further indicated that she was able to perform all her required duties, i.e., lifting, pushing, pulling, sorting, and customer and official financial and communication relations. Complainant stated that she provided medical documentation to all her supervisors. The record indicates that Complainant had been accommodated to use a rubber mat and stool for her foot conditions since 2018. Regarding claims 1 and 2, Complainant indicated that she was denied accommodations to work a straight eight hours with no lunch at a workstation by a doorway. The record indicates that in a letter dated June 13, 2019, Complainant’s manager (M1) informed Complainant that Complainant’s supervisor indicated to her that Complainant was refusing to take lunch because Complainant had medical documentation indicating that she should not take a lunch break. As management was unable to locate her medical documentation, M1 asked Complainant to provide medical documentation with hour/work/no lunch day restrictions to explain how the work restriction affected her medical conditions. Therein, Complainant was notified to provide medical document by June 21, 2019. The record is devoid of Complainant’s medical documentation prior to M1’s letter. On August 2, 2019, Complainant provided her Doctor A’s medical note, dated June 25, 2019, indicating that Complainant was seen on that day for chronic foot deformities and pain. Doctor A stated that due to these physical limitations, Complainant required the use of both a stool for occasional sitting and a rubberized mat on the floor of her workstation. Further, Doctor A indicated that for her medical benefit, it was better for Complainant to work through her lunch due to the increased pain when she resumed work after taking a break. On September 3, 2019, Complainant provided Doctor B’s medical note, dated August 23, 2019, indicating that she should not work her days off or work on a holiday for the next six months. Doctor B stated that Complainant would benefit from being seated near a doorway during the course of the day. Based on the foregoing medical notes, M1 issued Complainant a letter dated September 9, 2019, indicating that her workstation already had a rubberized floor mat. M1 stated that Complainant’s official work schedule was 8:45 am to 5:30 pm with a 45-minute lunch break. However, Complainant had been taking a one-minute lunch break to give the appearance that she had taken a lunch break. Complainant did not have a permission to do so, and it was only discovered on August 15, 2019. M1 indicated that all employees who worked more than six hours a day were required to take a lunch break. M1 further stated that when Complainant did not take a lunch break it increased operational costs by increasing the amount of overtime she received at the end of the day. 2022002297 4 M1 informed Complainant that she was required to work until the end of her shift, including her full 45-minute lunch break, to serve all customers while the window was open. M1 encouraged Complainant to continue moving during her lunch break so as not to increase her pain when she returned to her duties. Therein, M1 also informed Complainant that she was moved from her workstation by the doorway to another workstation two stations over because the Lead Clerk needed to work in that workstation. M1 indicated that the workstation by the door had access to the telephone and the Lead Clerk needed to page for lobby assistance when the customer line was too long. As to her being exempted from working her days off or on holidays, M1 informed Complainant that she did not need to perform overtime work on her scheduled days off or holidays at this time. M1 noted that since Complainant was on the overtime desired list, if she worked during the holiday season in the future, she might need to provide medical documentation identifying her restricted conditions if she was needed to perform overtime work. The record indicates that Complainant provided additional medical notes, dated October 2, 2019, November 27, 2019, and December 5, 2019. Therein, Doctor A reiterated that it would be beneficial for Complainant to work a straight eight hours with no lunch. Regarding claim 3, management denied the alleged incidents. Specifically, management stated that all employees were supervised by supervisors and the Lead Clerk had administrative responsibility to monitor all window clerks, including Complainant, concerning their workloads, job duties, and lunch and break schedules in compliance with Agency regulations. M1 indicated that she was unaware of Complainant being isolated in that all SSDAs, including Complainant, were located at the customer counter and performed their job duties. Regarding claims 4 and 5, Complainant claimed that she was told to take a lunch break; to help customers at the windows or passport/general clerk duties; and to carry a paddle (hall pass) even when she used the restroom. The record reveals that as a SSDA, Complainant was required to perform distribution and a variety of sales and customer support services for products at a retail window such as maintaining sufficient inventory of any selling stamps, stamped paper, and other retail products; issuing and cashing foreign and domestic postal money orders; renting post office boxes; and distributing primary and one or more secondary schedules of incoming/outgoing mail. Complainant did not claim that she was denied performing the foregoing SSDA duties. M1 indicated that all SSDAs, including Complainant, were provided the same job instructions and were allowed to perform their duties. M1 also indicated that all window clerks, including Complainant, were required to carry a paddle when they were leaving the window area. M1 noted that Complainant performed all her bid duties and no duties had been taken away. Regarding claim 6, Complainant indicated that for September 9 - 19, 2019, she requested sick leave but was charged leave without pay and for September 20 - 27, 2019, she requested annual leave but was charged leave without pay. 2022002297 5 M1 indicated that Complainant was not initially approved for sick/annual leave because she placed her leave forms in a wrong location, i.e., in a locked box which was used for vacation sign ups that was only checked two times a week. Complainant acknowledged that the foregoing September leave requests were subsequently corrected. M1 stated that regarding Complainant’s leave request for December 2, 2019 to January 2020, Complainant was not authorized leave without pay for that period because her Family and Medical Leave Act (FMLA) had expired and leave without pay was not allowed for any employees, except under FMLA. Regarding claim 8, the Postmaster indicated that the facility kept a unit cash reserve drawer for SSDAs to exchange a large bill to smaller bills and it was handled by one SSDA who was available to make cash exchanges to other SSDAs. The Postmaster indicated that on October 3, 2019, Complainant was not available to work on the unit cash reserve drawer due to her FMLA situation and since management needed it in order to do its business to serve its customers, it was transferred out of her name. The Postmaster further indicated that although he asked Complainant to transfer the unit drawer on that day, she refused to do so. The Postmaster found Complainant’s refusal very unusual. After Complainant left work on October 3, 2019, management had to contact the help desk in order to obtain the unit drawer’s password so they could transfer it to another employee. The Postmaster noted that a clerk conducted the audit of the drawer and Complainant was not charged with any monetary responsibility. The Postmaster indicated that he was not aware of Complainant being forced to sign an audit for money. Based on the foregoing, the Agency issued its decision finding that Complainant was not subjected to discrimination as alleged. Complainant appeals from the Agency’s decision. On appeal, Complainant contends that the Agency improperly fragmented Complainant’s issues into isolated incidents. Complainant argues that the complaint involves two claims, i.e., a failure to accommodate and reprisal for seeking accommodation, and all other claims are nothing more than fragmented incidents of supporting evidence to the two claims. ANALYSIS AND FINDINGS Contentions on Appeal Initially, we note that Complainant contends on appeal that the Agency improperly defined her complaint by fragmenting her issues into isolated incidents. However, Complainant did not object to such in a timely manner upon her receipt of the Agency’s acceptance letters on December 30, 2019, and again on February 6, 2020, when she was clearly asked to do so. Upon review, we find that the Agency properly defined and accepted Complainant’s disability accommodation issue in claims 1 and 2. Thus, we will address this issue accordingly. 2022002297 6 We further note that on appeal, Complainant raises reprisal as a basis for her claims for the first time. The Commission has held that, absent a compelling reason, a complainant may not add a new basis on appeal. See Arnulfo T. v. Dep’t of Homeland Security, EEOC Appeal No. 2019004155 (June 2, 2020) (citing Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000)). Thus, we will not consider reprisal as a basis in the instant complaint. Standard of Review 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 (EEO MD-110), Chap. 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"). Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that a complainant was denied a reasonable accommodation, the complainant must show that: (1) he or she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he or she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (as revised Oct. 17, 2002) (Enforcement Guidance). Under the Commission’s regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.2(o), (p). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. In claims 1 and 2, Complainant claimed that due to her disabilities, she was entitled to accommodations to work a straight eight hours with no lunch at the workstation by the doorway. The Agency properly requested necessary medical documentation regarding her requested accommodations. Complainant did not produce any evidence or medical justification to show that her working without lunch at the workstation by the doorway would effectively accommodate her disabilities to perform her work. 29 C.F.R. § 1630.9; see also Enforcement Guidance; Latricia P. v. Dep’t of the Army, EEOC Appeal No. 2019000803 (Aug. 19, 2020). 2022002297 7 Here, Complainant failed to provide sufficient medical documentation such as her medical test results, medical treatment records, and/or her medical limitations based on her medical examinations. Further, although Complainant indicated that the requested accommodations would be beneficial for her, she was not entitled to the accommodation of her choice. See e.g., Complainant v. Dep’t of the Navy, EEOC Appeal No. 0120110592 (Jan. 4, 2013); Complainant v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Upon review, we find that the Agency fulfilled its obligations under the Rehabilitation Act when it provided Complainant with a rubber mat and stool for her foot conditions. Disparate Treatment 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). Complainant must initially establish a prima facie case by demonstrating that Complainant was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community 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’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. 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. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, 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). In the instant case, assuming arguendo that Complainant had established a prima facie case of discrimination, find that the Agency articulated legitimate, nondiscriminatory reasons for its action. 2022002297 8 Regarding claims 3, 4, and 5, M1 and the Lead Clerk were responsible to supervise SSDAs, including Complainant, to monitor their work, workloads, job duties, lunch break schedules, and to give work related instructions. Upon review, we find that Complainant failed to show that she was not allowed to perform her SSDA duties or that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Regarding claim 6, M1 indicated that Complainant was not initially approved for September 2019 sick/annual leave because she placed her leave forms in a wrong location. Complainant acknowledged that the subject leave was later corrected. M1 stated that Complainant was not authorized take leave without pay for December 2, 2019 to January 2020, because her FMLA had expired. Regarding claim 8, the Agency stated that the unit cash reserve drawer was transferred from Complainant to another clerk because Complainant was no longer able to take care of the drawer. Even assuming Complainant was purportedly forced to sign an audit for the drawer’s accounting as she indicated, the audit did not result in any shortage of money. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Further, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. The Commission has held that agencies generally have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Upon review, we find that Complainant failed to show that any of the actions were motivated by discrimination. Harassment To establish a claim of harassment, Complainant must establish that: (1) Complainant belongs to a statutorily protected class; (2) Complainant was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on Complainant’s statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Service, Inc., 23 U.S. 75 (1998). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 2022002297 9 Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in her position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Regarding her claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. Further, the Commission has held that routine work assignments, instructions, admonishments, and addressing performance deficiencies do not rise to the level of harassment because they are common workplace occurrences. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014); Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). We note that anti-discrimination statues are not civility codes designed to protect against the “ordinary tribulations” of the workplace. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 23 U.S. at 81. Upon review, we find that Complainant failed to make such showing here. Accordingly, we find that Complainant did not establish that the Agency subjected her to harassment as alleged. Based on a thorough review of the record, considering all statements submitted on appeal, we find that Complainant failed to show that she was discriminated against as alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2022002297 10 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022002297 11 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 9, 2023 Date