Selene M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionMar 29, 20190120171824 (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 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. 0120171824 2 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. 0120171824 3 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. 0120171824 4 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. 0120171824 5 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. 0120171824 6 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. 0120171824 7 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. 0120171824 8 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. 0120171824 9 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 0120171824 10 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