Christeen H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

2019001769 (E.E.O.C. Sep. 4, 2019)

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

Christeen H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 2019001769

Hearing No. 531-2016-00122X

Agency No. 1K-211-0017-15

DECISION

On November 13, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 1, 2018 final action concerning an equal employment opportunity
(EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Mail Handler at the Agency’s Incoming
Mail Facility (IMF) in Baltimore, Maryland.

On June 26, 2015, Complainant filed a formal complaint. Complainant claimed that the Agency
discriminated against her on based on disability and in reprisal for prior EEO activity when:

1. on April 7, 2015, she was sent to another flat sorter machine to work while her co-
workers were allowed to stand around and do nothing; and

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.
2019001769

2
2. on June 23, 2015, she was denied annual leave.

After an investigation of the complaint, Complainant was provided a copy of the investigative
file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the
Agency filed a Motion for a Decision Without a Hearing. On October 19, 2018, the AJ issued a
decision by summary judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the formal complaint:

On November 25, 2003, Complainant was diagnosed with Plantar Fibromatosis, Tarsal Tunnel
Syndrome, Bilateral Unspecified Bone and Cartilage Disorder.

Complainant asserted that she provided medical documentation to the Injury Compensation
Office but did not provide copies of the records to her supervisor or any other management
official. She also acknowledged that she never made these same management officials aware of
her medical condition.

Complainant’s medical condition required the Agency to modify her daily tasks. These
modifications included limiting the time Complainant was on her feet, as well as limiting the
weight she was required to lift.

On April 26, 2010, the Agency offered Complainant a modified Mail Handler position that
allowed her to work an 8-hour day. The position required continuous lifting and carrying 15
pounds of material, intermittent lifting and carrying 20 pounds of material and intermittent
standing and walking for 6 hours. The position was in the Agency’s Flat Sorter Unit.

Complainant’s daily work-related duties as a modified Mail Handler were to prepare mail by
cutting straps and poly wrap from bundles into Automation-Compatible Tray (ACT) carts,
continuous lifting or carrying 15 pounds of mail and intermittent lifting or carrying of 20 pounds
of mail. She completed these duties on the flat sorter machine.

On July 1, 2013, Complainant filed a formal EEO complaint because she did not feel
comfortable working with a certain co-worker. The supervisor became involved in the complaint
because she was the acting supervisor of both employees. The complaint was settled, and the
Acting 204B agreed to move Complainant to another flat sorter machine. Complainant withdrew
the complaint after it was mediated.

The AJ noted that in regard to claim 1, Complainant’s supervisor stated that the matter of
Complainant’s restrictions was a factor in the supervisor’s decision to keep Complainant in the
flat sorter operation. The supervisor acknowledged she did not reassign all of Complainant’s co-
workers to other duties immediately.
2019001769

3
Instead, the supervisor stated that when the flat sorting machine malfunctioned, she assigned a
named co-worker to finish completing and wrapping the letter tray. She then assigned the other
three co-workers to Express Orientation after discussing the malfunction with other management
officials. The AJ further noted that the supervisor asserted the delay in resigning the three co-
workers, as a result of her discussions with other management officials, may have led
Complainant believe that her co-workers were allowed to stand around and do nothing.

Regarding claim 2, the AJ noted that Complainant’s supervisor denied Complainant’s annual
leave request due to the Independence Day holiday schedule having been posted, the schedule
covered shifts up to July 8, 2015 and her services were needed during the time she requested
leave. The supervisor, however, approved Complainant’s request for 6 hours of leave on July
11, 2015 despite her requests for July 5-8, 2015 having been denied because it was after the
holiday posting.

Based on this evidence, the AJ concluded no discrimination or unlawful retaliation was
established. The Agency issued its final action adopting the AJ’s decision.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

Disparate Treatment

2019001769

4
A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).2

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for the non-selections.
Complainant did not prove, by a preponderance of the evidence, that these proffered reasons
were a pretext designed to mask discrimination or unlawful retaliation.

Regarding claim 1, Complainant alleged that on April 7, 2015, she was sent to another flat sorter
machine to work while her co-workers were allowed to stand around and do nothing.

On April 7, 2015, the flat sorter machine that Complainant and four other co-workers were
working on malfunctioned. The Acting 204B approached Complainant and immediately sent her
to another flat sorter machine to perform her daily duties. While Complainant left the
malfunctioning flat sorter machine, she observed that the Acting 204B did not send the co-
workers immediately to another machine. Complainant averred that the co-workers did not
continue working elsewhere while the machine was undergoing repair.

The Mail Handler (unknown disability/prior protected activity) stated that during the relevant
period, she was the Acting 204B of the flat sorter operation. She acknowledged sending
Complainant to another flat sorter machine because the flat sorter that she was working on was
not operating properly. Specifically, the Acting 204B stated that she informed the mail handlers
of flat sorter number two that the flat sorter was not operating properly and instructed
Complainant “to go prep mail on the other flat sorter” and a named co-worker to complete and
wrap trays. The Acting 204B stated that she also assigned the remaining three co-workers to
Express Operation to help dump sacks.

Further, the Acting 204B stated that Complainant “asked me why she had to go to flat sorter
number 1 and “I asked her could you please follow my instruction.” The Acting 204B stated
when Complainant asked her why she had to go to flat sorter number 1 when other co-workers
were not doing anything “my response to the Complainant was, ‘the other employees are being

2 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified
individual with a disability.
2019001769

5
moved to other operation, because I did not have an estimated time for flat sorter machine
number 2 to be operational.”

Regarding claim 2, Complainant asserted that on June 23, 2015, she was denied annual leave.

Complainant’s supervisor (unknown disability/prior protected activity) stated that Complainant’s
annual leave was denied because the holiday schedule was posted on June 22, 2015 that included
the Independence Day. Specifically, the supervisor stated that on June 23, 2015, Complainant
submitted a PS Form 3971 “Request for or Notification of Absence” requesting 30 hours on June
23, 2015 which was denied “because the holiday posting was up. [Complainant] should have
submitted a leave slip for just 6 hours for July 11, 2015 or resubmitted a 3971 stating revised
requesting July 5-11, 2015.”

The supervisor averred that Complainant’s request for leave for 6 hours on July 11, 2015 was
subsequently approved despite her requests for July 5-8, 2015, having been denied, because it
was after the holiday posting.

Another Supervisor Distribution Operations (“Supervisor 2”) (unknown disability/prior protected
activity) stated at that time Complainant’s leave request was denied “due to the holiday schedule
already being posted, and it was posted at the start of business on Tuesday June 23, 2015.
Supervisors are required to provide a reason for the disapproval of a leave request, and the
Complainant was advised on her leave request that the holiday posting was already in place.”

Supervisor 2 stated, however, she later reviewed Complainant’s leave records and noted that her
annual leave had been previously approved in February 2015 for the period from July 5, 2015 to
July 8, 2015. Supervisor 2 stated “I do not know why she would request leave again if her
request had already been approved, nor do I know why she did not mention to anyone that she
had already had requested leave and had been approved for annual leave.”

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.

2019001769

6
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.
2019001769

7

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

September 4, 2019
Date