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

Equal Employment Opportunity Commission

Mar 9, 2015

0120130855 (E.E.O.C. Mar. 9, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120130855

Hearing No. 430-2011-00277X

Agency No. 4K-280-0117-10

DECISION
On December 7, 2012, Complainant filed an appeal from the Agency’s November 23, 2012
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. The Commission
deems the appeal timely and accepts it for de novo review 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 Part Time
Flexible (PTF) Sales, Services & Distribution Associate at the North Carolina Leland Post
Office. On October 2, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of sex (female), disability, and age (49) when: (1) in the
fall of 2009, she allegedly reported a sexually charged hostile environment; no attempt was
made by management to investigate or reassign her, which resulted in her not being able to
return to work; (2) on May 26, 2010, she received a letter of request for medical
documentation; (3) on July 14, 2010, she was issued a Notice of Removal for Unsatisfactory
Attendance/Abandonment of her Position; (4) on August 6, 2010, the July 14, 2010, Notice of
Removal was rescinded; and (5) on August 12, 2010, she was issued a Letter of Removal for
Absence without Leave (AWOL).
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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 requested a hearing, but the AJ denied the hearing
request on the grounds that Complainant failed to comply with the Commission's orders,
effectively not prosecuting her complaint nor fully participating in discovery. The AJ
remanded the complaint to the Agency, and 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.

In the present case, the AJ cites complainant’s failure to appear for her deposition, as reasons
to dismiss the hearing request. However, no explicit show cause order was issued to
Complainant that would have mandated her to appear at her deposition. Nevertheless, we find
that a hearing at this time would fail to meaningfully develop the record further for reasons set
forth below.

FACTUAL BACKGROUND
Complainant entered on duty with the Agency on March 4, 1995. She was employed in
Phoenix, Arizona until she transferred to the Leland, North Carolina Post Office in July 2009.
In Leland, Complainant was a Part-Time Flexible Sales and Service Associate and was
responsible for sorting, boxing and breakdown of mail as well as working the customer
window. Complainant never made management aware of any impairment which affected her
ability to perform the duties of her position. She does not claim that she ever requested any
accommodation for her back condition or her fibromyalgia, nor does she claim that
management had any knowledge of the same.

Complainant alleges that after she began to work at the Leland Post Office, she was called a
dyke by a co-worker (C1) on or about July 1, 2009. She further claims that C1 treated her
with hostility. When questioned about this allegation, C1 denied ever calling Complainant a
dyke. C1 averred that Complainant had complained to the Postmaster (PM), who is now
deceased, that C1 had been disrespectful and harsh toward her. C1 noted that PM brought the
two of them into his office for a discussion about Complainant's allegations. During the
discussion, C1 states that she apologized to Complainant and told her that she did not intend to
hurt Complainant's feelings and that she was just trying to get her work done. C1 noted that
Complainant appeared to have accepted the apology. On another occasion, C1 heard
Complainant inform PM that C1 and another co-worker (C2) were talking about her and
laughing at her. PM confronted the two women about Complainant's complaint. They
explained to PM that they were in fact talking and laughing; but not about Complainant.

Complainant also claims that C2 called her names (she does not state what names she was
allegedly called by C2) and that C2 kicked tubs of mail at her and bullied her. When
questioned, C2 denied ever calling Complainant a dyke and asked the investigator what the
word "dyke" meant. C2 also denied calling Complainant any names or kicking tubs of mail at
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or toward her. C2 also stated that when Complainant first came to the Leland Post Office, she
would talk with C2 about personal issues not related to work. While Complainant states that
she was bullied and called names, the other employees in the office state that they never heard
any name calling. Some of her co-workers indicated that Complainant told them she was
homesick, sorry she came to North Carolina and that she wanted to go home. Complainant’s
coworkers liked Complainant and said that she was nice but did not interact with others much
or come to off-duty events. They also indicated that she was a slow worker.

The record shows that at the time Complainant states that she was mistreated by her co-
workers, she was taking numerous medications for psychiatric and physical conditions.
Included in her regimen were Paxil, Zyprexa, and Ritalin. When she was hospitalized in
December 2009, it was noted by her treating physician that she was taken off Ritalin which
was felt to possibly be too activating for her and could have been contributing to some of her
decompensation and psychosis. However, Complainant apparently continued to take Ritalin as
it was also noted in her discharge summary from a second hospitalization in February 2010,
that "[t]he Ritalin apparently triggered some rapid-cycling mood dysregulation for her and
again triggered problems in her reactions with her work situations. She was irritable with
coworkers. She had difficulty going to work. She was paranoid about the coworkers making
comments about her lesbian identity and her appearance." She was again taken off of Ritalin.
In addition to the aforementioned medications for her mental disorder, the record shows that
Complainant had been taking opiates for pain since 1998.

Complainant alleges that she was subjected to a sexually charged hostile environment at the
Leland Post Office. Specifically, she claims she was called a dyke by C1 and states that
comments were made to her about her appearance and her weight. However, she does not
provide any specificity as to the nature of these comments or when they occurred. More
recently, Complainant indicates that she has no first-hand recollection of what occurred in
North Carolina as a result of electroshock therapy treatments she received after she left North
Carolina.

While she indicates that C1 allegedly called her a dyke in or about July 2009, she states that
she told PM in November 2009 that she was being harassed. However, PM denied that
Complainant ever told him she felt like she was being harassed. He noted that on
Complainant's last day in the office she told him that no one liked her but gave him no
specifics as to why she felt that way. PM stated that he was aware of an incident between
Complainant and C1 in July 2009, and he called them into his office for a discussion which he
believed had resolved the misunderstanding.

Complainant was hospitalized for depression from December 1, 2009 until December 8, 2009
and was released to return to work with no restrictions on December 16, 2009. She was
diagnosed as having a major depressive disorder, recurrent, severe with psychotic features.
With respect to her release to return to full duty, there was no indication that Complainant was
suffering from any condition attributable to her work environment or that she needed any
accommodation.
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Complainant was hospitalized again on February 11, 2010. She was having suicidal ideations
and reported having been hospitalized on three prior occasions in Arizona with her
hospitalizations occurring during the winter months. She was still taking the Ritalin, which she
was supposed to have stopped, in accordance with the discharge summary from her December
2009 hospitalization. She told her doctor that the Ritalin made her excessively exhausted and
probably manic. During her hospitalization, she informed her doctor that her father was a
monster and he suffered from mood swings. She was diagnosed as having bipolar disorder,
depression, PTSD, and a personality disorder. She was again taken off Ritalin and some of
her psychiatric medications were changed as well.

In February 2010, a fax was sent by Complainant's treating physician addressed "To Whom It
May Concern" indicating that Complainant was then hospitalized and required psychiatric
treatment. The fax further stated that Complainant was suffering from depression and chronic
pain. The doctor stated Complainant "feel[s] she could function better in a second shift
position where she could work independently without direct customer service. She wants to
return to work in conditions where she could use her fullest capabilities." Again, there was no
mention of any sexual harassment, bullying or intimidation. Rather, her treating psychiatrist
referred to Complainant's discomfort in dealing with customers. Complainant's previous
positions in Phoenix involved evening shift work at a mail distribution center and later in the
central forwarding system unit. None of this work involved dealing with the public or
customers. On February 19, 2010, Complainant's treating psychiatrist sent another fax to
postal management stating that Complainant would be able to return to full duty with no
restrictions on February 27, 2010. Here, there was no reference to any harassment or need for
accommodation.

Complainant returned to work for a brief period of time and left on March 4, 2010, never to
return to duty. After she had been absent for more than two months without submitting
medical documentation to substantiate her absences, PM sent a letter to Complainant directing
her to appear for a pre-disciplinary interview and provide medical documentation to
substantiate her absence since March 4, 2010. By this time, Complainant had left North
Carolina and returned to Arizona. In response to this letter from PM, Complainant sent a note
indicating that she had called in to the “1-800 Sick Hotline” to report her absence. However,
she had not provided any medical documentation to substantiate her incapacity from duty as
required by postal regulations.

On May 28, 2010, rather than appearing for the pre-disciplinary interview, Complainant's
therapist sent a letter to PM indicating that Complainant was upset by PM’s letter to her and
that she had been unable to work from March 4, 2010 through May 21, 2010 due to her mental
depression. The therapist stated that her absence was due to the stress of her position and the
abusive behavior of several co-workers. When no additional medical documentation was
forthcoming and Complainant did not return to work, she was issued a Notice of Removal on
July 14, 2010. Due to an error in the Notice, it was subsequently reissued.

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In the interim, the Mid-Carolinas District Reasonable Accommodation Committee (DRAC)
became aware of Complainant and sent her the paperwork to be completed so that the
interactive process could commence to see whether Complainant could be accommodated. On
August 19, 2010, Complainant's therapist sent a letter to the Officer-in-Charge of the Leland
Post Office (OIC) (since PM had gone out on extended sick leave), stating that Complainant
had been suffering from depression and anxiety due to abusive treatment by her co-workers
and that she might need to go on disability.

On August 20, 2010, Complainant responded to the DRAC requesting additional time to
provide the requested documentation and to hold the interactive meeting by telephone.
Complainant was advised that she could have an additional seven days to return the DRAC
forms and have a telephonic meeting as she requested. Complainant faxed the DRAC forms
back to the DRAC on September 3, 2010. She included information from her therapist who
blamed the Agency and Complainant's union for her problems and stated that she will need “a
long rest and rehabilitation for some time to come, perhaps years." In other words, according
to her therapist, Complainant was not capable of working.

A telephonic DRAC hearing was scheduled on September 23, 2010, with Complainant.
Following the meeting, Complainant was asked to provide additional information regarding her
work restrictions. Complainant provided additional information from her therapist who now
stated that she could work in any location where “prejudice and abusive behavior are not the
norm..." She requested that Complainant be assigned a position in Phoenix. The Mid-
Carolinas District DRAC indicated that they were not able to provide Complainant with a
position in Phoenix as they had no control over that district and moreover the information
provided by Complainant as to whether she was capable of working was contradictory.

When Complainant failed to provide clarification as to her restrictions and her ability to
perform the essential functions of her position with or without a reasonable accommodation,
the DRAC eventually closed out her file. Complainant has never returned to duty in North
Carolina.

CONTENTIONS ON APPEAL
Complainant asserts that the Agency erred in concluding that she failed to establish that she
was a qualified individual with a disability. Specifically, Complainant asserts that it was the
hostile work environment that kept her away from coming into work. Complainant further
asserts that the record shows that she was capable of performing the essential functions of her
position if transferred to a postal office in Arizona. Complainant also argues that the Agency
failed to articulate a legitimate, nondiscriminatory reason for failing to respond to her alleged
complaints of harassment.

Complainant also argues that the record contains corroborating evidence that she complained of
harassing behavior. Specifically, she notes that C1 indicated that she and Complainant were
called in to PM’s office to discuss behavior that Complainant deemed “disrespectful” to her for
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which C1 apologized. In addition, the record indicates that C1 may have kicked tubs of mail
toward her.

ANALYSIS AND FINDINGS
Aside from Complainant’s uncorroborated and at times confusing assertions, we find the
record devoid of evidence to support a finding that Complainant had actually tolerated a hostile
work environment that was sufficiently severe or pervasive to alter the terms and conditions of
her employment. The fact that a misunderstanding occurred between Complainant and C1 on
one occasion in July 2009, is not sufficient to support Complainant’s claim that she was
subjected to a sexually charged hostile work environment. In addition, the record does not
support Complainant’s assertion that she notified management of such harassment prior to
receiving the notice of removal. There is significant medical evidence in the record suggesting
that Complainant’s psychiatric impairments were affecting her judgment about what was
happening at work and that due to electroshock therapy treatments, she is now unable to
remember.

In addition, assuming Complainant was an individual with a disability, within the meaning of
the Rehabilitation Act, the record shows that she was not qualified to perform the essential
elements of her position with or without a reasonable accommodation. We also note that the
Agency was entitled to request and receive medical documentation in support of Complainant’s
lengthy absence and that Complainant failed to provide such information. Accordingly, the
Agency was not obligated to accommodate Complainant. The record also shows that
Complainant was unable to work at the Leland Post Office but failed to present evidence that a
vacant and funded position was available in Arizona to which she could be reassigned.

We also find insufficient evidence that the Agency’s legitimate, nondiscriminatory reasons for
its employment actions were pretext or otherwise motivated by discriminatory animus.

CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Final Agency 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.
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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 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
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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

Date
March 9, 2015