Susan A. Sands-Wedeward, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionJan 27, 2012
0120111687 (E.E.O.C. Jan. 27, 2012)

0120111687

01-27-2012

Susan A. Sands-Wedeward, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.




Susan A. Sands-Wedeward,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120111687

Hearing No. 443-2010-00089X

Agency No. 1J-536-0009-09

DECISION

On January 25, 2011, Complainant filed an appeal from the Agency’s

January 20, 2011, final decision concerning her equal employment

opportunity (EEO) complaint alleging employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the

appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).

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 Mail Handler at the Agency’s Processing and Distribution Center in

Madison, Wisconsin. On July 26, 2009, Complainant filed an EEO complaint

alleging that the Agency discriminated against her on the bases of

her disability (back condition) and reprisal for prior protected EEO

activity when:

1. on an ongoing basis since May 2007, management has subjected her to

hostile work environment harassment, including but not limited to: not

being accommodated with a change of schedule, having her badge taken away

and being sent home, being ordered out of the break area during her break,

being given a ‘day in court’ and issued a Letter of Warning, and

her supervisor entering her work area every 15 minutes with a clip board;

2. on September 30, 2009, management issued her a Notice of 7-Day

Suspension; and

3. on October 18, 2009, management issued her a Notice of 14-Day

Suspension for failure to follow instructions.

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 EEOC Administrative Judge (AJ). Complainant

timely requested a hearing but subsequently withdrew her request,

by letter dated November 29, 2010. Consequently, the Agency issued

a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision

concluded that Complainant failed to prove that the Agency subjected

her to discrimination as alleged. On appeal, Complainant reiterates

her contention that she was subjected to unlawful discrimination and a

hostile work environment.

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. (November 9, 1999) (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”).

Initially, with respect to Complainant’s contention that she was denied

the reasonable accommodation of a change in schedule, the Rehabilitation

Act prohibits discrimination against qualified disabled individuals. See

29 C.F.R. § 1630. In order to establish that Complainant was denied

a reasonable accommodation, Complainant must show that: (1) she is

an individual with a disability, as defined by 29 C.F.R. 1630.2(g);

(2) 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: Reasonable Accommodation and

Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002

(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. See 29 C.F.R. §§ 1630.2 (o) and (p).

Here, we find that assuming, without finding, that Complainant is

an individual with a disability, she has not shown that the Agency

failed to provide her with a reasonable accommodation. The record

shows that Complainant submitted medical documentation to management

outlining her restrictions and was provided with a light-duty position

commensurate with those restrictions. Report of Investigation (R.O.I.),

page 143-153. The record further shows that Complainant subsequently

requested that she be rescheduled from the night shift to the day shift

because “her sleep disturbance [was] exacerbating her symptoms” and

she needed to “care for her diabetic son during the day.” Id. 147,

242. The record shows that management approved a temporary reassignment

to the day shift but denied Complainant’s request for a permanent

reassignment as there was no light duty work available on that shift

commensurate with her medical restrictions. Id. at 250-252. We find

that Complainant has presented no evidence to show that the provided

accommodation of light duty work on the night shift was ineffective and

we note that although protected individuals are entitled to reasonable

accommodation under the Rehabilitation Act, they are not necessarily

entitled to their accommodation of choice. See Enforcement Guidance

on Reasonable Accommodation and Undue Hardship Under the Americans

with Disabilities Act (Reasonable Accommodation Guidance) EEOC Notice

No. 915.002 at Question 9 (October 17, 2002).

Further, to the extent that Complainant was requesting a schedule change

in connection with her son’s disability, we find that the Agency

did not have to accommodate Complainant. The Commission has held that

individuals with a relationship or association with a person with a

disability are not entitled to receive reasonable accommodation. See

EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue

Hardship under the Americans with Disabilities Act at n. 5 (October 17,

2002); Brooks v. Dept. of Veterans Affairs, EEOC Appeal No. 01A32247

(August 7, 2003). Further, the record shows that Complainant requested

Family and Medical Leave Act leave in order to care for her son and that

these requests were approved. R.O.I. at 310-317. Accordingly, we find

that Complainant has not demonstrated that she was denied reasonable

accommodation.

As to claims (2) and (3), to prevail in a disparate treatment

claim, Complainant must satisfy the three-part evidentiary scheme

fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). She must generally establish a prima facie case by

demonstrating that she was subjected to an adverse employment action under

circumstances that would support an inference of discrimination. Furnco

Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry

may be dispensed with where the Agency has articulated legitimate and

nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of

Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 (2000); St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs

v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't

of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995).

Here, the record shows that assuming, arguendo, Complainant established

a prima facie case of disability and reprisal discrimination, the Agency

nonetheless articulated legitimate, nondiscriminatory reasons for its

actions. The record shows that Complainant was issued a Notice of 7-Day

Suspension, dated September 24, 2009, for unacceptable conduct and

failure to follow instructions. R.O.I. at 172, 199. The record shows

that on September 7, 2009, Complainant was involved in an altercation

with a supervisor during which Complainant “spoke loudly” while

the supervisor was speaking to her in an effort to drown out the

supervisor’s instructions. Id. The record also shows that on September

8, 2009, Complainant submitted a request to be allowed not to take a

lunch break and that although the request was denied by management,

Complainant failed to take her required lunch break. Id. Complainant

was also issued a Notice of 14-Day Suspension, dated October 18, 2009,

for failure to follow instructions after being directed “repeatedly

not to write in [her] notebook while on the clock.” Id. at 174,

199. We note that Complainant had previously been issued a Letter of

Warning (LOW), dated July 27, 2009, for being absent from her work area

without authorization and failure to follow instructions. Id. at 90. The

record shows that on July 6, 2009, Complainant was found by a management

official sitting in the break room reading a book while on duty. Id. at

90, 168. The management official states that she had been informed that

Complainant had been in the break room for hours and that she refused to

return to her work station when instructed to do so. Id. at 198. We find

that Complainant has not shown that the Agency’s articulated reasons

for issuing her the discipline at issue were a pretext for unlawful

discrimination or were motivated by discriminatory or retaliatory animus.

Further, to the extent that Complainant is alleging that these actions

were part of a hostile work environment, we find that under the standards

set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993),

Complainant’s claim of harassment must fail. See Enforcement Guidance

on Harris v. Forklift Systems, Inc. at 3, 6 (March 8, 1994). Proof of a

prima facie case of harassment is precluded based on our finding that

Complainant failed to establish that any of the actions taken by the

Agency were motivated by her disability or prior protected activity. See

Oakley v. United States Postal Service, EEOC Appeal No. 01982923

(September 21, 2000).

Finally, with respect to the remaining incidents alleged, we find that

even if true and considered together, they do not rise to the level

of actionable hostile work environment harassment. Moreover, we find

that Complainant has failed to proffer any evidence beyond her mere

assertions, that the Agency’s actions were motivated by discriminatory

or retaliatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we affirm the

Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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 or within twenty (20) calendar days of

receipt of another party’s timely request for reconsideration. See 29

C.F.R. § 1614.405; Equal Employment Opportunity Management Directive

for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).

All requests and arguments must be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

77960, Washington, DC 20013. 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 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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time limits

as stated in the paragraph above (“Right to File a Civil Action”).

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

January 27, 2012

__________________

Date

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0120111687

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120111687