Selene M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Mar 29, 2019

0120171824 (E.E.O.C. Mar. 29, 2019)

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

Selene M.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120171824

Hearing No. 443-2016-00111X

Agency No. 1E-501-0005-15

DECISION

On April 28, 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
March 31, 2017 final decision 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. Our review is de novo.
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 General Expediter at
the Agency’s work facility in Des Moines, Iowa. On August 20, 2015 (and as amended),
Complainant filed an EEO complaint alleging that the Agency discriminated against her and
subjected her to a hostile work environment on the bases of her race (Asian), color (brown), sex
(female), disability (complex regional pain syndrome of the leg, left foot, FX metatarsal bone,
closed, left), age (48), and in reprisal for prior protected EEO activity as evidenced by multiple
incidents including, inter alia, on May 12, 2015 and June 22, 2015, Complainant was denied

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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reasonable accommodation as she was denied work within her medical restrictions; on May 12,
2015, her manager (MDO2) threatened to send her home if she did not perform work assigned that
violated her medical restrictions; on September 17, 2015, management instructed Complainant to
clock out after asking her to perform work that exceeded her restrictions; on September 29, 2015
and ongoing, Complainant was placed in an off-duty status without pay and told to go home after
she refused to sign a blank Form 2499; and Complainant was presented with a modified job offer
that exceeded her medical restrictions and was only for two hours a day.2

At the conclusion of 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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but
subsequently withdrew her request and the AJ assigned to the matter remanded the complaint to
the Agency for the issuance of a final decision. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

The record reflects that Complainant suffered an on-the-job injury in April 2013 that caused her
to develop the condition of “Complex regional pain syndrome of the limb; left, FX metatarsal
bone, closed, left.” Upon her return to duty in April 2013, the then-Manager Distribution
Operation (MDO1) and Complainant agreed to a temporary limited duty modification that
permitted Complainant to sort mail while seated for 6:45 hours a day and carry a tray with her shoe
on for 45 minutes per day. Pursuant to the limited duty agreement, Complainant could take her
shoe off while sitting, but had to wear her shoe when walking or carrying trays. The Agency stated
that this modification allowed Complainant to sit and sort mail at the Waste Mail Table.
Complainant stated in her affidavit that the Waste Mail Table had horizontal sorting which
permitted her to be off her feet. The Agency noted that Complainant had Office of Workers’
Compensation (OWCP) restrictions that limited her walking and standing to two hours per day.

Complainant explained that at times she was capable of performing sorting and tying duties at a
Letter Sorting case but this required her to be on her feet and reach overhead. Complainant stated
that once she reached her limit in performing casing and tying out duties, the restrictions allowed
her to take off her shoe and perform duties that did not require continuous overhead reaching,
standing, walking and leaning on a sorting stool for so long. Complainant asserted that when she
has pain, she accommodates herself by going to the Waste Mail Table, takes off her shoes, and
works at desk height with both feet on the ground. In May 2014, Complainant’s limitations were
changed to allow 4-6 hours walking, two hours of standing, and lifting up to 20 pounds.

2 The Agency dismissed additional claims regarding denial of union representation, being placed
in an off-duty status without pay, and her receiving a Duty Status Letter for failure to state a claim
and for stating the same claim as previously raised. Complainant did not challenge the Agency’s
dismissal of these claims on appeal; therefore, the Commission will exercise its discretion and not
address those dismissed claims herein.
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The Manager Distribution Operations (MDO2) assigned a coworker to work with Complainant
and Complainant claimed this coworker had her performing duties outside her restrictions
including on May 12, 2015. The Agency stated that Complainant informed the coworker that she
could not do such work and she went to the Union Office. Complainant alleged that MDO2 called
her and informed her that the coworker was a “management extension” and that Complainant was
to do what she says. Complainant stated that she remained in the Union Office because
management would not allow her to take her shoe off in the work unit even though it was part of
her accepted medical restrictions. Complainant returned to the Manual Letters Unit to avoid
MDO2 sending her home as he had threatened in the past. According to Complainant, when she
attempted to tell MDO2 that taking off her shoe was part of the prior MDO’s job offer, MDO2
responded that he did not want to talk about it and he told her to go back to work. Complainant
was subsequently sent home by MDO2 for being disruptive on the workroom floor.

With regard to the matter that occurred on June 22, 2015, Complainant stated that she was working
at the Waste Mail Table since there was no more raw mail and it was where she could take her
shoe off as needed, sit and not reach overhead. Complainant asserted that MDO2 instructed her
to return to the sorting case and she sat there for 40 minutes with nothing to do and no way to rest
her foot. Complainant stated that this resulted in her becoming uncomfortable because she was
leaning on a stool unbalanced without being able to rest her foot. According to Complainant,
MDO2 ordered her to put her shoe on when he saw her. Complainant states that MDO2,
Supervisor 1 and Supervisor 2 have all told her to either put her shoe back on or they will clock
her out.

Complainant stated that on September 16 – 17, 2015, the coworker told her to get up and tie out
mail. Complainant asserted that she responded that her foot was really hurting, and she asked her
if she could get someone else to do it. Complainant asserted that the coworker told her to do it and
she responded that she could not. According to Complainant, Supervisor 1 then told her to get up
and do the assigned work or he would punch her off the clock. Complainant maintained that she
told him he was asking her to work outside of her restrictions and that he replied he didn’t care
and that she was to get up and tie out. Complainant stated that she contacted the Union Steward
who informed Supervisor 3 (the Acting MDO that night) that this was a hostile work environment
and that it needed to stop. Supervisor 3 assigned Complainant to the Waste Mail Table for the rest
of the night and until further notice. Complainant worked there from September 17, 2015 –
September 29, 2015. Complainant has been out of work continuously since and receiving
payments from OWCP.

On September 29, 2015, Complainant claimed that Supervisor 3 gave Complainant a Modified Job
Offer (PS Form 2499) which was blank except for Complainant’s name. Supervisor 3 informed
Complainant that she was required to sign it. Complainant declined and was sent home. According
to the Agency, on October 7, 2015, Complainant was requested to come into work to discuss a
new 2499 modified job offer. The Agency noted that this job offer included various assignments,
among which were working on Waste Mail, which allowed sitting to perform some or all of the
work. Complainant’s attorney advised her not to sign the job offer. Subsequently, Complainant
was presented with a new 2499 on October 23, 2015, and advised by MDO2 to sign it or leave.
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The Agency stated that this form had substantially the same jobs and duties as previously submitted
but was more fully completed. Complainant did not sign or accept as her attorney asserted that
the job offer was not sufficiently specific.

On December 19, 2015, Complainant received a modified job offer from MDO2. The job offer
proposed a Pouch Rack Clerk position for two hours that included standing, using hand and arms,
bending and lifting for two hours. Complainant rejected this offer claiming that it was inconsistent
with her medical restrictions. Complainant alleged that it was against her restrictions as she could
not be on her feet for two hours straight and had to remove her shoe every hour to relieve the pain
in her foot. Complainant maintained that pouch rack clerks perform continuous bending and
twisting motions and it would be unsafe for her due to heavy moving equipment in the area and
no place to sit down. According to Complainant, the pouch rack area was designated as a non-
light duty area which meant that no light or limited duty employees are allowed to work in the area
because it is not safe for restricted duty employees. Complainant noted that the job offer was only
for two hours per day in contrast to prior job offers that were for eight hours per day/three days
per week.

The Senior Plant Manager stated that the modified job offer issued in December 2015 was based
on Complainant’s Work Capacity Evaluation dated April 7, 2015. The Senior Plant Manager noted
that this Evaluation indicated that Complainant can only twist, bend, stoop and squat for two hours
per day. According to the Senior Plant Manager, the facility does not have work for over two
hours per day that accommodates this restriction given that every job requires twisting, bending,
stooping and squatting for more than two hours per day.

In the decision, with regard to Complainant’s denial of reasonable accommodation claim, the
Agency explained that Complainant’s initial limited duty assignment included the limitations she
requested as she was assigned to sit in Manual Letters and sort mail in a manual case, take her shoe
off while sitting and have her shoe on while tying, going to break or lunch, or when she carried
trays. The Agency stated that Complainant wanted to work at the Waste Table where she did not
have to reach over her head, she did not have to tie off, and she had a more comfortable seating
arrangement. The Agency reasoned that Complainant’s attempts to accommodate herself by not
working her limited duties, and, instead, unilaterally reassigning herself to the Waste Table is
evidence that she could not perform the essential functions of her position, even with the
accommodation extended to her in 2013.

Assuming that Complainant could perform the essential functions of her position, the Agency
stated that other than to complain that management was working her outside her restrictions,
Complainant made no specific request for an accommodation. The Agency noted that on July 11,
2013, September 29, 2015, October 7, 2015, and December 19, 2015, management submitted
proposed accommodations to Complainant. The Agency stated that rather than engaging in an
interactive approach in which she suggests adjustments to the work requirements, Complainant
instead simply rejected the job modifications.
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The Agency maintained there cannot be a finding of discrimination for failure to accommodate
where management attempted to resolve the issue, but Complainant did not submit a clear request
for specific accommodation

With regard to Complainant’s claim of disparate treatment, the Agency assumed arguendo that
Complainant established a prima facie case of discrimination and reprisal and found that
management had articulated legitimate, nondiscriminatory explanations for its actions. The
Agency found that Complainant failed to show that management’s reasons for its actions were
pretextual. As a result, the Agency found that Complainant had not been subjected to
discrimination or reprisal as alleged.

Thereafter, Complainant filed the instant appeal without submitting any arguments or contentions
in support.

ANALYSIS AND FINDINGS

Denial of Reasonable Accommodation

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. § 1630.9. In order to establish she
was unlawfully denied a reasonable accommodation, Complainant must show that: (1) she is an
individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency
failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002
(October 17, 2002). The term “qualified” with respect to an individual with a disability, means
that the individual satisfies the requisite skill, experience, education and other job-related
requirements of the employment position such individual holds or desires and, with or without
reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. §
1630.2(m).

Once an employer becomes aware of the need for an accommodation of an employee’s disability,
the employer has an obligation to engage in an interactive process with the employee to identify
and implement appropriate reasonable accommodations. We shall assume for purposes of
analysis, without so finding, that Complainant is an individual with a disability. Here,
Complainant claimed that she was denied reasonable accommodation on several occasions when
she was denied work within her medical restrictions. The record discloses that as of May 15, 2014,
Complainant’s restrictions included no more than four to six hours of walking and no more than
two hours of standing. Complainant had no reaching limitations. The Agency noted that
Complainant and management had entered into a May 21, 2014 settlement expressly allowing
Complainant to remove her shoe as needed by leaving the floor and moving to the break room or
restroom and that Complainant may remove her shoe when sitting at the case. However, Agency
management officials later expressed concern about Complainant being on the workroom floor
without proper footwear and maintained it would be a safety hazard.
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The Agency stated that Complainant’s OWCP-5 Work Capacity Evaluation dated April 7, 2015
indicated that she should be permitted to remove her shoe for five minutes each hour. The Agency
asserted that management officials allowed Complainant sufficient time to rest her foot pursuant
to these restrictions, but they did not want her on the workroom floor without shoes.

Further, Complainant complained about being in Manual Letters because she believed that she was
being worked outside her restrictions. According to Complainant, this work required her to reach
overhead because the letter carrier is tall. Complainant asserted that she must sit or lean on a metal
sorting stool with her left foot hanging in the air, and this caused her to be unbalanced on the stool.
The Agency stated that management insisted that Complainant work in Manual Letters, as
provided in the original 2499 and subsequent agreements, but that Complainant kept self-
accommodating by moving to the Waste Mail Table as she did in the incident of June 22, 2015.
We find that the Agency appropriately relied upon Complainant’s OWCP-5 Work Capacity
Evaluation in its handling of the situations on May 12, 2015 and June 22, 2015. Complainant has
not shown that the Agency did not allow her to remove her shoe for five minutes each hour those
dates pursuant to her Work Capacity Evaluation. Furthermore, there is no evidence indicating that
management officials assigned Complainant work outside of her restrictions. If Complainant
experienced difficulties completing her duties within her medical restrictions, it was incumbent
upon her to reengage with the Agency about additional accommodations rather than self-
accommodating.

We note that the Agency stated that on July 11, 2013, September 29, 2015, October 7, 2015, and
December 19, 2015, management submitted proposed job offers to Complainant. The Agency
stated that rather than engaging in an interactive approach in which she suggested adjustments to
the work requirements, Complainant instead simply rejected the job modifications. Complainant
has not presented persuasive evidence that disputes that the modified job offers were ineffective
accommodations. Upon review of the record, we find that Complainant did not reengage the
Agency to request additional reasonable accommodations after the incidents of May 12, 2015 and
June 22, 2015, and she subsequently did not participate in the interactive process. The EEO
process for obtaining a reasonable accommodation requires agencies and employees to engage in
an “interactive process” regarding reasonable accommodations to determine the best options for
both the employee and management. Employees who refuse to cooperate in that process are not
entitled to an accommodation. See Carleen L. v. Dept. of Veterans Affairs, EEOC Appeal No.
0120151465 (May 12, 2017), citing EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice
No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation); see also
Zachary K. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015); Liz M.
v. U.S. Postal Serv., EEOC Appeal No. 0120170672 (Apr. 20, 2018). Accordingly, we find that
the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation
Act.

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Hostile Work Environment

To establish this claim, Complainant must show that: (1) she belongs to a statutorily protected
class; (2) she 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 her 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.
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).

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 Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of her protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

Here, we shall assume without expressly finding that Complainant is an individual with a
disability. Complainant asserted that based on her protected classes, she was subjected to a hostile
work environment based on several incidents of what she believed to be discriminatory and
retaliatory harassment. The Commission finds that the record evidence supports the determination
that Complainant has not shown that he was subjected to conduct sufficiently severe or pervasive
to create a hostile work environment.

With respect to the incident on May 12, 2015, MDO2 denied that Complainant was ever denied
work within her restrictions or asked to work outside of her restrictions. ROI, at 233. MDO2
affirmed that Complainant refused the instructions of her coworker who was acting as a Lead Clerk
at the time. Id. at 233-34. MDO2 confirmed that Complainant told the co-worker that management
could not make her get up and walk even though the assigned duties at the time were within
Complainant’s restrictions. Id. at 234. MDO2 stated that Complainant was sent home because
she became very loud, hostile, and disruptive on the workroom floor. Id. at 235. Likewise, on
June 22, 2015, MDO2 stated that Complainant was not denied work within her restrictions; rather,
he ordered Complainant back to the Letter Sorting case because she had assigned herself to the
Waste Table and was not working while there was plenty of work for her at the Letter Sorting case.
Id. at 237.

As to the September 17, 2015 incident, Supervisor 1 stated the coworker needed someone to case
501 mail which would have involved the same type of motions and actions Complainant was doing
while working 030 mail. ROI, at 296. Supervisor 1 asserted that Complainant refused saying it
was beyond her restrictions. Id. Supervisor 1 asserted that he then told Complainant that if she
did not do that work she was to clock out and go home. Id. Complainant was allowed to stay and
perform other work.

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Regarding the September 29, 2015 incident, the Agency asserted that Complainant was placed in
an off-duty status without pay because she would not sign Form 2499.
MDO2 stated that he had received new restrictions for Complainant from OWCP and a blank 2499
was presented to Complainant for it to be completed with her and a Union Steward present. ROI,
at 244. Complainant would not cooperate and refused to sign the 2499. MDO2 explained that if
an employee does not accept an offer of modified assignment, the employee is not allowed to work
until a signed 2499 is received. As a result, Complainant was place in an off-duty status.
Complainant has been out of work since September 29, 2015.

Finally, with respect to the December 2015 modified job offer, the Senior Plant Manager stated
that the modified job offer was based on Complainant’s Work Capacity Evaluation dated April 7,
2015. Management asserted that the modified job offer provided Complainant work pursuant to
her restrictions; however, Complainant rejected this offer as being inconsistent with her medical
restrictions. While Complainant complained that the job offer was limited to two hours per day,
the Senior Plant Manager noted that the facility did not have sufficient work for over two hours
that matched Complainant’s restrictions. MDO2 stated that 90 percent of the packages in the
Pouch Rack are small packages that weigh less than three pounds. MDO2 explained that another
clerk other than Complainant could work a package that weighed more than twenty pounds.
MDO2 also denied that the Pouch Rack Area is an area where restricted employees were not
supposed to work. MDO2 stated that the facility does not have specified areas for light duty and
limited duty work.

Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work
environment as to the totality of the conduct alleged. Moreover, to the extent Complainant claims
that she was subjected to disparate treatment, the Commission finds that, as discussed above,
Complainant has not proffered any evidence from which a reasonable fact finder could conclude
that the Agency's explanation for its actions was pretext for discrimination or reprisal.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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.
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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.

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
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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