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

Equal Employment Opportunity Commission

Apr 10, 2019

0120180562 (E.E.O.C. Apr. 10, 2019)

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

Alexandria L.,1
Complainant,

v.

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

Appeal No. 0120180562

Hearing No. 443-2016-00125X

Agency No. 1J-531-0006-16

DECISION

On November 24, 2016, Complainant filed a timely appeal with the Equal Employment
Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s November 2, 2017, final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Mail Processing Clerk, Level 06 at the Green Bay Wisconsin Processing & Distribution Center.

On January 11, 2016, Complainant filed an EEO complaint alleging, in relevant part, that the
Agency discriminated against her based on her sex (female/pregnant) when:

1. Since September 3, 2015 and continuing, she was told to perform work outside her medical
restrictions.

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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2. On October 16, 2015, she was sent home.

Following an investigation, Complainant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). The AJ issued a summary judgment decision
without a hearing finding no discrimination.

Writing that she was construing all facts in the light most favorable to Complainant, the AJ found
as follows. On August 12, 2015, Complainant’s physician (by facsimile to the Agency) wrote she
was limited to continuously and intermittently lifting/carrying 15 pounds, to intermittently
pulling/pushing 15 pounds, and standing for two hour intervals (for the duration of her pregnancy.
She was expecting at the end of October 2015). On August 19, 2015, Complainant gave her
primary first line supervisor (S1 – male) medical limitations by her chiropractor of “Sedentary –
Light” material handling, occasional bending at the waist, no squatting, kneeling, or crawling (but
permitting standing for two-hour intervals with 30 minutes of sitting between intervals), and
frequent walking. Report of Investigation (ROI), Ex. 6, Bates No. 142).

The AJ further found as follows. Since (February 2015), Complainant typically worked the first
hour of her shift prepping flats (thicker mail) and the remainder processing flats on the Advanced
Facer-Canceler System Machine (AFCS, also referred to as the Canceler). Working at the Canceler
requires constant standing. Prior to August 12, 2015, Complainant worked 12.45 to 24.88 hours
per week on the Canceler, and after August 12, 2015, was only assigned on the Canceler to provide
relief breaks, 1.75 to 6.91 weekly. There were only four instances after August 12, 2015, that
Complainant worked more than two hours on the Canceler. In all but one she did not work
continuously and was provided temporary break relief throughout her shift. The one exception was
on September 22, 2015, when she worked continuously on the Canceler for 2.61 hours.

After Complainant submitted her medical restrictions, the Agency trained her to work on the Letter
Machine and Flat Sorter, work she never did before. She started working on the Flat Sorter
sometime in August 2015.

At no time during her pregnancy prior to October 16, 2015, did Complainant object to any
assignment being outside her medical restrictions. Between mid-August 2015 and October 16,
2015, Complainant had no discussions with management about her restrictions, except (on
September 3, 2015), when S1 in passing asked Complainant if she liked working on the Flat Sorter,
and she said it was hard work for her and hurt her back. She worked on the Flat Sort two more
dates.

In September 2015, Complainant submitted a request for Family and Medical Leave Act (FMLA)
protective leave to the Agency’s Human Resources Shared Service Center (HRSSC) in North
Carolina, which approved her request from October 30, 2015 through December 11, 2015.
(Complainant conceded that the local supervisors in her facility are not involved in approving
requests for FMLA. Complainant’s deposition at 54).

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On October 15, 2015, Complainant submitted an annual leave request for October 20 – 23, 2015,
a total of four days, indicating “Start of Maternity Leave FMLA.” She wanted the leave because
friends were visiting from overseas, and she planned to return to work on October 24, 2015. At
work on October 16, 2015, S1 told Complainant that this request was denied because her maternity
leave (FMLA) did not start until October 30, 2015. Later that day, S1 (in his role of Acting
Manager) asked Complainant to perform break reliefs on the Canceler, as she had done since mid-
August. Complainant refused and said she was having pains. ROI, Complainant’s affidavit, Bates
No. 97. A Supervisor of Distribution Operations 1 (SDO 1 – male) reviewed Complainant’s
medical restrictions, as characterized by the Lakeland District Medical Unit Health Log, and
determined that the Canceler assignment did not violate them. SDO 1 brought a copy of these
restrictions to Complainant, explaining the Canceler assignment was within them, and told her to
do the work or go home. Complainant, in tears, responded that she was in pain. SDO 1 asked why
she was at work, and Complainant replied the pain was mild. Id., at 98. Complainant went home
on paid sick leave for the remainder of the day. On Monday, October 19, 2015, Complainant visited
her doctor and obtained a note putting her off work immediately. The Agency honored this.
Complainant told the EEO counselor that on October 19, 2015, the Plant Manager approved her
request for 240 hours of advanced sick leave. On appeal, Complainant submits documentation
showing that following her request in November 2016, HRSSC retroactively approved her for
FMLA from October 19, 2015 – January 8, 2016, for birth and bonding.

The AJ found that Title VII explicitly both provides that discrimination based on sex includes
pregnancy, childbirth, or related medical conditions, and that women affected by pregnancy,
childbirth, or related medical conditions should be treated the same for all employment-related
purposes as other persons not so affected but similar in their ability or inability to work. Citing
United States Supreme Court and Commission precedent, the AJ recounted that a complainant
alleging that the denial of an accommodation for a pregnancy related condition constitutes
disparate treatment sex discrimination may state a prima facie case by showing that (1) she belongs
to the protected class, (2) she sought accommodation, (3) the agency did not accommodate her;
and (4) the agency did accommodate others.

The AJ found Complainant failed to show that the Agency violated its legal obligation to
reasonably accommodate her. The AJ found that Complainant did not object to performing break
relief duties on the Canceler until October 16, 2015, after her leave request was denied, albeit she
now contends it required lifting full trays of letters, and working on it even for short periods
violated her restrictions. After Complainant submitted her medical restrictions, she was trained on
the Flat Sorter, but now also claims that working on it even a short time violated her medical
restrictions. The AJ questioned why Complainant would agree to an assignment which violated
her restrictions, or not inform management that the duties were outside her restrictions. If
Complainant was performing duties outside her restrictions, the AJ concluded she failed in her
obligation to tell management or clarify her medical restrictions.

In its final order, the Agency fully implemented the AJ’s decision. The instant appeal followed.

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ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An
issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate.

Upon review of the record we find that the AJ properly found that the instant complaint was
suitable for summary judgment. The record is adequately developed and there are no disputes of
material fact.

On appeal, Complainant argues that the work she performed after she submitted her medical
restrictions was outside of them. But she does not dispute the AJ’s finding that she did not tell
management that this was so.

We find, for the same reasons set forth by the AJ, that Complainant failed to prove discrimination
based on her sex.

The Final Order is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.

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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 10, 2019
Date