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

Equal Employment Opportunity Commission

Mar 9, 2017

0120141443 (E.E.O.C. Mar. 9, 2017)

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

Caitlyn H.,1
Complainant,

v.

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

Appeal No. 0120141443

Agency No. 1J-531-0024-13

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 5, 2014, 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Casual Mail Handler at the Agency’s Processing and Distribution
Center in Milwaukee, Wisconsin. She was employed from October 2012 through December
31, 2012, and again from February 11, 2013, until March 6, 2013. Investigative Report (IR)
177, 189.

On April 26, 2013, Complainant filed an EEO complaint in which she alleged that numerous
management officials had discriminated against her on the bases of race (African-American),
color (Black), disability (after-effects of back and knee injuries sustained in 2010), and in

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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reprisal for prior protected EEO activity. She identified the following individuals as
responding management officials: Senior Plant Manager (SPM); Acting Senior Manager of
Distribution Operations (ASMDO); Acting Manager of Distribution Operations (AMDO);
Manager of Distribution Operations (MDO); Secretary for the Senior Plant Manager (SPM’s
Secretary); Acting Transitional Coordinator (ATC); Acting Supervisor of Distribution
Operations (ASDO); and two Supervisors of Distribution Operations (SDO1 & SDO2).

Incidents Investigated:

1. On December 27, 2012, the AMDO gave Complainant a negative performance
evaluation.

2. On December 31, 2012, Complainant was not allowed to be placed on a closed
custodial hiring register notwithstanding that she held a 10-point veterans’
preference.

3. On January 7, 2013, Complainant was informed that she had not been
recommended for rehire.

4. On March 2, 2013, Complainant’s medical restrictions were violated.

5. On March 7, 2013, Complainant received a notice of termination.

Incident (1)

Complainant acknowledged that she was actually given a satisfactory evaluation by the AMDO
on December 27, 2012. IR 135. SDO1, Complainant’s nominal supervisor at the time was on
leave, so the AMDO completed the evaluation so as not to miss the deadline for submission of
performance appraisals. The appraisal itself indicates that for Complainant’s thirty-day
evaluation, the AMDO gave her a rating of “satisfactory” on five of the six performance
elements and a rating of “unsatisfactory” on the remaining element. IR 172, 304. The AMDO
characterized Complainant’s overall performance as “satisfactory.” IR 254.

Incident (2)

Complainant averred that her applications for custodial and mail-handling positions were not
given any consideration despite her entitlement to a ten-point veterans’ preference. She also
averred that she inquired about the matter with the ASMDO, who informed her that she did not
qualify for the register because of her casual status. IR 139-40. When asked by the
investigator what reasons management had given her for not allowing her to be placed on the
register, Complainant replied that the hiring process had changed and that as a result, she had
to apply and take an examination whenever a vacant position arose. IR 140. When asked about
the incident, the ASMDO replied that as a manager responsible for three shifts, he had made
the decision not to permit Complainant to be placed on the register. The ASMDO averred that
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Complainant had been terminated five times between 2001 and 2007, that he had rehired her in
October 2012 at the behest of a retired manager who had known her, and when she returned
she displayed the same problems that had previously gotten her into trouble, including a
negative attitude, a poor work ethic, failure to follow instructions, and attendance issues. IR
255. The AMDO averred that Complainant had falsified information on the medical report
that was included in her application for rehire (discussed in detail under Incident (4)). IR 210.
The ATC stated that Complainant had submitted her applications at a time when the register
was closed, and that no one could apply until the register was reopened. IR 237.

Incident (3)

Complainant averred that she was informed on January 7, 2013, that due to a negative
evaluation, she would not be rehired. IR 144. An employee probationary report made out for
Complainant dated January 7, 2013, and signed by SDO1 indicates that for her sixty-day
evaluation, SDO1 gave Complainant an “unsatisfactory” rating in three of six performance
elements and recommended that she not be rehired. IR 173. SDO1 averred that she could not
recommend that Complainant be rehired as a Casual Mail Handler because of her performance,
but that she did not want to see Complainant disqualified for other positions at the Agency. IR
321-22. The AMDO opined that Complainant’s work performance and attendance were the
reasons that she received a negative evaluation from SDO1. IR 209. The ASMDO averred
that he decided to discard SDO1’s evaluation and asked the SPM’s Secretary to rehire
Complainant on the basis of the earlier evaluation provided by the AMDO. IR 257.

Incident (4)

When asked to describe the condition she characterized as a disability, Complainant averred
that she been periodically experiencing pain in her lower back and knees since September 17,
2010, the result of an injury that she sustained while on active military duty. She averred that
she did not know the prognosis or how long the condition was expected to last. IR 128-29.
She also averred that the condition flared up from time to time, and that she was taking
medication and undergoing therapy on a regular basis. When asked if her condition had
substantially limited any major life activities, Complainant responded again that she
experienced infrequent flare-ups and that limitations on working, walking, bending, stooping,
twisting and other activities were necessary only during those flare-ups. IR 129-33.

After Complainant had been offered a job but before she was due to report for work, the
Agency presented her with a medical inquiry dated October 3, 2012, consisting of three
documents. The first document was entitled: “External Applicant Medical Assessment
Report.” Complainant had checked the box corresponding to the entry, “no medical
limitations and restrictions.” IR 314. The second document entitled, “Applicant Medical
Questionnaire,” consisted of the following three questions:

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• Do you have any physical or mental condition or medical limitations that could interfere
with your ability to perform the job you have been offered?

• Are you currently being treated by a medical provider for any health condition or
taking any medication that may impair your ability to perform the full duties of the
position for which you have applied?

• Do you now have or have you in the past two years had work restrictions imposed by a
treating provider that affected your ability to perform any job?

For all three questions, Complainant checked the box corresponding to “no.” In signing the
form, she certified that her responses to the above questions were correct to the best of her
knowledge and belief. IR 315. The third document, entitled “Functional Requirements and
Environmental Factors,” specified both the essential job functions for the position and the
environmental conditions to which the employee would be subject. For the Casual Mail
Handler position, essential job functions included lifting up to 70 pounds and carrying over 45
pounds. Environmental factors included excessive cold, dampness, or chilling. The form also
included a single question asking whether the employee had any medical disorder or physical
impairment which could interfere in any way with the full performance of the duties of the
position the employee was offered. Complainant answered, “no.” IR 316.

A handwritten doctor’s note dated November 9, 2012, and addressed “to whom it may
concern” stated that Complainant had been seen in the emergency room at the Clement
Zablocki VA Medical Center in Milwaukee, and that she should perform sedentary work for
the following seven days. The note was signed by a physician. IR 176. Another note issued
the same day from a Registered Nurse stated that Complainant was on a lifting restriction of
five pounds while her back brace remained on back order, and requested that the 5-pound
lifting restriction remain in place until Complainant received her back brace. IR 178. A third
note dated December 17, 2012, indicated that Complainant had been seen in the emergency
room of the Zablocki Medical Center for lower back pain and that she would be able to return
to work without any limitations. IR 175.

On February 9, 2013, the SPM’s Secretary emailed Complainant notifying her that there was
an available Casual Mail Handler position and she needed to come into the office to complete
the paperwork. Complainant replied that she was interested and asked for details, pursuant to
which the SPM’s Secretary responded that the start time would be at 4:00 pm and that she
could bring Complainant back for three months in 2013. Complainant then emailed back
confirming that she report to the office as directed. IR 192-194. On February 13, 2013,
Complainant emailed the SPM’s Secretary and asked if she could be reassigned to the low-cost
work area on the fourth floor that she was assigned to during her stint as a Casual Mail
Handler from October through December 2012, as a reasonable accommodation. IR 191. The
Secretary replied that Complainant would have to speak directly to the SPM about her assigned
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location and forwarded her instructions as to how to contact the SPM. IR 190-91.
Complainant was rehired on February 11, 2013. IR 177.

When asked by the investigator what restrictions had been violated, Complainant averred that
the AMDO had been violating her restrictions continuously since February 14, 2013, by
refusing to reassign her to the low-cost area where she had been assigned before. She averred
that she had attempted to get in touch with the SPM as per his Secretary’s instructions, but was
told that the SPM was on leave that the AMDO was covering for him during his absence. She
maintained that the AMDO had assigned her to the loading dock instead of the low-cost area,
and that the AMDO refused to transfer Complainant back to the low-cost area despite having
received a request for a reasonable accommodation on her behalf from the Zablocki VA
Medical Center. IR 147-148, 150. That note, dated February 14, 2013, indicated that
Complainant was requesting a reasonable accommodation consisting of a twenty-pound weight
restriction and a heated work area. The note stated that repetitive lifting of more than 20
pounds and working in cold areas could exacerbate her back and knee pain, and that she had
been able to perform her duties when she was assigned to the low-cost work area on the fourth
floor between November and December 2012. IR 177. Complainant also averred that on
March 2, 2013, while sitting in a chair, she was approached by management officials and
ordered to get up because, “casuals couldn’t sit down.” IR 147.

When asked whether or not she was aware that Complainant suffered from a medical condition
or impairment, the AMDO averred that Complainant informed her of her condition when she
worked on the fourth floor low-cost area of mail processing. The AMDO acknowledged that
Complainant had provided her with a copy of the note from the Women Veterans’ Health Care
clinic indicating that she had a knee and lumbar spinal condition, but noted that this condition
was not noted on the external applicant medical assessment report that Complainant had signed
on October 3, 2012. When asked what she thought Complainant’s limitations were, the
AMDO opined that Complainant had a lower back condition that prevented her from
performing certain job functions. She also averred that she had not received any
documentation of Complainant’s medical condition. IR 208-09. In addition, the AMDO denied
that Complainant’s medical restrictions were violated, pointing out that on her external
applicant medical assessment report, Complainant stated on October 3, 2012, that she did not
have any restrictions. IR 213. SDO2, who was Complainant’s first-line supervisor at the
time, also denied that Complainant’s medical restrictions were violated, reiterating that
Complainant never turned in any medical documentation stating any type of restrictions. IR
230.

Incident (5)

In a letter dated March 4, 2013, Complainant stated that she was requesting a temporary leave
of absence due to her medical restrictions being violated on a daily basis by her immediate
supervisor in work area 18, the loading dock. She stated that she needed time to recuperate
from physical pain, intimidation, harassment and intentional distress. She also asked to be
directed to the Employee Assistance Program. IR 185. Complainant also submitted a PS
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Form 3971 dated March 4, 2013, in which she requested 42 hours for an absence to be taken
between March 4 and March 10, 2013. The type of absence she checked was “other –
Casual.” IR 186. Complainant averred that she dropped this paperwork off at the General
Clerk’s office on March 4, but did not speak with anyone about it. IR 152. She did,
however, leave a message for the MDO asking the MDO to call her upon receipt of her
documents. IR 187.

In a memorandum dated March 5, 2013, the MDO ordered Complainant to report to the
General Clerk’s Office for a meeting that same day at 5:30 PM. The purpose of the meeting
was to discuss the paper work Complainant had left at the Clerk’s office the day before. IR
188. Complainant averred that she never received the memorandum, and consequently missed
the meeting. IR 152-53. The following day, the ASDO, who was Complainant’s nominal
supervisor in the loading dock area, issued Complainant a notice which stated that she would
be terminated, effective March 5, 2013, for failure to follow instructions and report to the
meeting that had been scheduled for that day. IR 189, 245, 259, 267, 279. Complainant stated
that she received the notice of her termination on March 7, 2013. IR 152. She identified as
the responsible officials the MDO, the ASDO, and SDO2. IR 153. SDO2 denied having any
knowledge of the matter. IR 231-32.

Post-Investigation

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
On December 30, 2013, Complainant requested a final decision without a hearing, and in
accordance with Complainant’s request, the Agency issued its 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.

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. (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”).

Failure to Reasonably Accommodate – Incident (4)

As a preliminary matter, we must first address the medical questionnaires that Complainant
was asked to complete on October 3, 2012. It is generally unlawful for an Agency to conduct
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a medical examination of an applicant or to make inquiries as to whether an applicant is an
individual with a disability or to make inquiries as to whether an applicant is an individual with
a disability or as to the nature or severity of such disability. 29 C.F.R. § 1630.13(a).
However, the Agency may make a medical inquiry after making an offer of employment to a
job applicant and before the applicant begins her employment duties, and may condition an
offer of employment on the results of such inquiry, if all entering employees in the same job
category are subject to such an inquiry regardless of disability. 29 C.F.R. § 1630.14(b). The
questions comprising what is clearly a standard medical inquiry were directed not to whether
Complainant was an individual with a disability, but rather to whether she could perform the
essential functions of the Casual Mail Handler position that she had already been offered. We
therefore find that the three questionnaires constitute a proper and acceptable medical inquiry
within the meaning of 29 C.F.R. § 1630.14(b).

Complainant maintains, in essence, that in violating her medical restrictions, the AMDO failed
to reasonably accommodate her disability. IR 149-50. Agencies are required to
reasonably accommodate the known limitations of qualified individuals with disabilities
unless they can show that doing so would cause an undue hardship to their operations. 29
C.F.R. §1630.9(a).

Assuming arguendo that Complainant was a qualified individual with a disability, the
evidentiary record in this case does not support a finding of Agency liability for failure to
provide Complainant with a reasonable accommodation. As previously discussed, neither the
medical notes provided by Complainant in 2012 nor the reasonable accommodation request she
presented upon her return in 2013 included any information regarding Complainant’s long-term
prognosis. See e.g. Williams v. United States Postal Service, EEOC Appeal No. 0120081584
(August 20, 2009) (Doctor’s letter that did not include a prognosis, diagnosis, and specific
limitations was found to be insufficient to support the need for reasonable accommodation).
Although the AMDO acknowledged that she was aware that Complainant had a lower back
condition which prevented her from performing some of her job functions, neither the AMDO
nor SDO1 had any reason to believe, based on the answers that Complainant provided in her
pre-employment medical assessment report from October of 2012, that Complainant was under
any permanent or long-term medical restrictions when she was rehired as a Casual Mail
Handler in February 2013. Moreover, Complainant herself had not identified any specific
tasks outside of her medical restrictions that she was ordered to perform. Beyond her own
assertions, Complainant has not presented any affidavits from other witnesses or documents
tending to corroborate the incident in which she was allegedly ordered to get up from a chair in
which she was sitting.

Overall, we find that Complainant had not presented medical documentation sufficient to
establish that she needed a reasonable accommodation to perform the essential functions of her
Casual Mail Handler position. She was merely asking to be reassigned from the loading dock
to the low-cost area on the fourth floor, where she had worked before. We agree with the
Agency that Complainant failed to prove that the AMDO, SDO2 or any other Agency official
had forced her to perform work outside of her medical restrictions.
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Disparate Treatment – Incidents (1) – (3), and (5)

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on her disparate treatment claim, Complainant would
have to prove, by a preponderance of the evidence, that the officials responsible for the actions
at issue in her complaint were motivated by unlawful considerations of her race, color,
disability, or previous EEO activity when they took those actions. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as
this, Complainant can establish motive by presenting evidence tending to show that the reasons
articulated by those officials for their actions were pretexts, i.e., not the real reason but rather
a cover for discrimination or reprisal. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515
(1993). We find that the Agency has articulated legitimate and nondiscriminatory reasons for
all four incidents that find support in the evidentiary record.

As to incident (1), the record conclusively establishes that the AMDO had given Complainant
an overall rating of “satisfactory” on her December 27, 2012 appraisal. Regarding incident
(2), the Agency gave multiple reasons for not placing Complainant’s application for future
casual vacancies on a register that had closed by the time Complainant had submitted her
application. The ATC had explained that once the register closes, new applications could not
be accepted until it reopened. The ASMDO stated that he had made the final decision not to
allow an exception to be made for Complainant given her past performance between 2001 and
2007. The AMDO averred that Complainant had falsified her pre-employment medical report.
Concerning incident (3), the record establishes that while SDO1 did give Complainant an
overall performance rating of unsatisfactory, the ASMDO disregarded SDO1’s January 2013
evaluation and instead went with the AMDO’s December 2012 performance rating of
satisfactory in deciding to rehire Complainant in February of 2013.

With regard to incident (5), the reason for Complainant’s termination was documented in the
March 6, 2013, termination notice as her failure to report to a supervisory meeting to discuss
her reasons for wanting to take a leave of absence. Complainant averred that the ASDO
refused to accept her explanation that she was unaware of the meeting. IR 152-53.
Complainant must bear in mind, however, that as a casual, she was an at-will employee who
could be lawfully terminated at any time, as long as not for discriminatory or retaliatory
reasons. Middleton v. U.S. Postal Service, EEOC Appeal No. 0120042843 (July 21, 2004).
See also Franklin v. U.S. Postal Service, EEOC Appeal No. 0120062026 (July 27, 2007)
(casual employees appointed for definite, short terms of employment, serve as at-will
employees, and do not qualify for progressive, disciplinary procedures).

Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in
the Agency’s proffered legitimate reasons for its actions that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal
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No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past
personal treatment attributable to those responsible for the personnel action that led to the filing
of the complaint, comparative or statistical data revealing differences in treatment across
various protected-group lines, unequal application of Agency policy, deviations from standard
procedures without explanation or justification, or inadequately explained inconsistencies in the
evidentiary record. Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov.
12, 2015).

When asked by the EEO investigator why she thought her race, skin color, disability, and
previous EEO activity were factors in incidents (1) and (3), Complainant replied that White
employees were treated more favorably and that the Agency discouraged casual employees
from asking for reasonable accommodation due to their temporary status. IR 136-39, 145-46.
With respect to incidents (2) and (5), Complainant admitted that she did not think her race or
color were factors in the Agency’s decision to keep her off the register and terminate her. IR
140, 153. But when asked about reprisal in connection with these incidents, she stated that she
had named several members of management and a supervisor in a previous EEO complaint,
but did not identify them. IR 142, 153-54. Beyond her own assertions, however, Complainant
has not presented any affidavits or sworn declarations from other witnesses or documents that
contradict the explanations provided by the various Agency officials in their affidavits, or
which call their veracity into question. We therefore find, as did the Agency, that
Complainant has not shown that she was the victim of discrimination or reprisal in connection
with incidents (1), (2), (3), or (5).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant was not discriminated against as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 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 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. The requests 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 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 discretion to grant or deny these types of requests. Such requests do not alter the
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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 9, 2017
Date