0120143066
02-12-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120143066
Hearing No. 460-2014-00044X
Agency No. 4G-770-0236-13
DECISION
Complainant filed an appeal from the Agency's August 7, 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., 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Richmond Post Office facility in Richmond, Texas.
On October 3, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (Left Arm/Stress/Depression), age (46), and reprisal for prior protected EEO activity.
According to the EEO Dispute Resolution Specialist's (DRS) Inquiry Report, dated October 24, 2013, Complainant alleged discrimination when:
1. On June 28, 2013, she received notification from the Work Force that she had been fired from the Postal Service due to her medical illness;
2. Management would not provide her with a CA-2 for her on-the-job injury;
3. She was not offered immediate medical assistance;
4. Management would not accept and fill out her CA-17 from her physician;
5. Management did not complete the necessary paperwork to send to the Department of Labor's Office of Workers Compensations Program (OWCP) for her claim to OWCP;
6. The Postmaster instructed all the Supervisors not to accept paperwork from [Complainant]:
7. Management would not explain clearly what medical documentation was acceptable for her to return to work;
8. Management delayed her OWCP compensation; and
9. On July 25, 2013, she was issued a 14-Day Suspension.
On October 30, 2013 and November 14, 2013, the Agency dismissed claims 2, 3, 4, 6, 7 and 8 of the above-referenced claims. Complainant does not dispute the dismissal in this appeal.
The Agency accepted the remainder of Complainant's issues, as amended, but the Agency framed the issues as alleging that the Agency discriminated against Complainant, when:
1. Since June 21, 2013, Complainant's supervisor found Complainant's medical documentation insufficient to support her request for a limited duty assignment;
2. On July 25, 2013, the Supervisor issued Complainant a 14-Day Suspension;
3. On October 10, 2013, Complainant received untimely notification of a meeting, mail addressed to her was misrouted and she was subjected to an investigative interview;
4. On unspecified dates, she was denied limited duty work;
5. On October 22, 2013, she was issued a 14-Day Suspension; and
6. On October 29, 2013, she was ordered to report to the District Office.
The pertinent record shows that Complainant named her supervisor (African-American female, age 45, no known disabilities) (Supervisor) and the Postmaster (Hispanic male, age 52, no known disabilities) (Postmaster) as the alleged responsible management officials in this action. The Supervisor was aware of Complainant's medical condition, race, sex and age. The Postmaster averred that he was unaware of Complainant's medical condition or any restrictions.
The record shows that Complainant has prior EEO complaints which were brought against the same officials named in this action. Management was aware of her prior EEO activity.
Claims 1 - Medical documentation deemed insufficient
On April 23, 2013, Complainant suffered an on-the-job injury to her left elbow, wrist and hand when she was lifting bundles of newspapers. Record of Investigation (ROI), Exhibit 7. She told the Supervisor that she was totally incapacitated. Complainant was away from work from April 24, 2013 to May 2, 2013. ROI, Counselor's Report, Exhibit 7.
On May 1, 2013, Complainant requested that the Agency grant her light duty for the period May 3, 2013 to May 20, 2013. Complainant subsequently withdrew her request for light duty.
On May 4, 2013, Complainant requested 520 hours of leave for the period May 3 through July 31, 2013. On May 9, 2013, Complainant filed an OWCP claim.
Claim 2 - Complainant was issued a 14-Day Suspension
On July 25, 2013, Complainant was issued a 14-Day Suspension for unacceptable attendance.
Complainant averred that the Supervisor and Postmaster had created a hostile work environment by ignoring her requests for limited duty.
Claim 3 - Untimely notification, misrouted mail and investigative interview
On October 1, 2013, the Supervisor requested that Complainant come to the office on October 4, 2013 to complete a form for an injury that Complainant stated that she sustained on June 21, 2013. Following the meeting, Complainant was scheduled for an investigative interview. Complainant did not report for the investigative interview.
Complainant averred that, on October 10, 2013, she received a notice to report to the district office on October 11, 2013, which made the notice untimely. She also stated that the letter had been tampered with and that her mail box had been left open. Complainant stated that she did not receive timely notice and was subjected to an unwarranted investigative interview.
Claim 4 - Denied Limited Duty Work
Meanwhile, Complainant also submitted documentation in support of a limited duty request. On May 21, 2013, the Houston District Health and Resource Management Office notified Complainant that her workers' compensation claim was being processed.
On June 3, 2013, Complainant submitted a leave slip for 352 hours of leave for the period June 8, 2013 through July 31, 2013, in anticipation of the granting of her pending workers' compensation claim. Management approved the leave request.
On June 4, 2013, Complainant provided the Agency with correspondence indicating that she was advised not to resume work due to the injury. Specifically, Complainant submitted a CA-17 that stated Complainant continued to be totally incapacitated for work. On June 14, 2013, Complainant submitted documentation for Family and Medical Leave Act (FMLA) certification, based on her carpal tunnel syndrome.
On June 15, 2013, her supervisor wrote Complainant and told her that the submission of the CA-17, by itself, is not acceptable documentation and that the documentation must be provided by her attending physician. Complainant's supervisor also advised Complainant that she failed to keep her aware of her status and failed to substantiate her inability to work with proper documentation for her absence since April 24, 2013. The supervisor referenced the Employee and Labor Relations Manual (ELM) Section 511.43 and 513.354, which requires the attending physician to provide an explanation of the nature of the injury sufficient to indicated to management that the employee would be unable to perform her duties for the period of the absence. Complainant averred that management did not give her a reason why it was refusing to sign off on the documentation that she submitted.
The record includes a CA-17, dated June 7, 2013 and a doctor's note, dated June 18, 2013, which stated that Complainant was totally incapacitated and unable to work. ROI, Counselor's Report, pp. 60, 63. On June 26, 2013, another doctor's note indicated that Complainant could return to work doing light duty general office work.
The Agency's Office of Human Resources had also notified management that the DOL CA-17 that Complainant submitted was insufficient to support her request for limited duty work. ROI, 359-360. Complainant identified four comparators whom she claimed were not subjected to any disciplinary actions and for whom the Agency approved a limited duty assignment. Those individuals are in the same protected group as Complainant.
On July 1, 2013, Complainant received a letter from her Supervisor that Complainant believed was tantamount to being fired due to her medical illness. On July 9, 2013, Complainant sent a note officially requesting limited / light duty beginning on July 15, 2013.
On July 22, 2013, the Department of Labor's Office of Workers' Compensation Programs (OWCP) approved Complainant's claim for relief for an occupational disease (carpal tunnel syndrome to her left hand).
Claims 5 and 6 - Complainant issued Suspension, dated October 22, 2013
On October 4, 2013, Complainant reported to the Richmond Office to meet with her Supervisor. The Supervisor averred that during the meeting, Complainant displayed verbal and physical behavior that the Supervisor deemed offensive and threatening. ROI, Exhibit B. Another manager, who was sitting in the next office, offered testimony in support of the Supervisor's recounting of the meeting and Complainant's behavior. Complainant was escorted out of the building. She was later told to report for a discussion of the incident.
On October 22, 2013, Complainant was issued a notice of 14-Day Suspension for improper conduct with regard to the October 4, 2013 incident. The suspension was the subject of a grievance, which was settled. The suspension would be reduced to an official discussion and removed from Complainant's file if she had received similar discipline during the following year.
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. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency Decision
The Agency found that "Complainant is considered an individual with a disability under the 'regarded as' provisions as to the issue of her not receiving limited duty work."
The Agency found that its actions were "necessary and warranted based on the overwhelming majority of the complainant's medical documentation, which indicated that she was totally incapacitated" from performing all work. The Agency reasoned that Complainant had not shown that she was a qualified individual with a disability, based on Complainant's own submissions which, the Agency asserts, demonstrate that she "cannot perform the essential duties of her position with any accommodation whatsoever."
Further, the decision concluded that Complainant "cannot establish either a prima facie case of discrimination or that the Postal Services articulated non-discriminatory reasons for its actions are pretextual." The Agency reasoned that the "Postal Service has articulated legitimate, nondiscriminatory reasons for its actions." The Agency then concluded that Complainant "cannot offer any specific evidence in support of his bare assertions . . . and is relying solely on general conclusory statements."1
This appeal followed.
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").
Complainant did not submit a brief in support of her appeal. Because she did not raise the dismissal of some of her claims, we consider those issues waived.
Rehabilitation Act
As a threshold matter, Complainant must establish that she is a "qualified individual with a disability" within the meaning of the Rehabilitation Act. An "individual with disability" is a person who has, has a record of, or is regarded as having a physical or mental impairment which substantially limits one or more of that person's major life activities, i.e., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. � 1630.2(j).
In this case, the Agency conceded that Complainant established that the Agency regarded Complainant as disabled with regard to its actions denying her a limited duty assignment. The Agency concluded that Complainant's evidence conceded that she was not "qualified." Moreover, the deciding official averred that management made its decision based on the medical documentation that Complainant provided, which stated that she was unable to work, with or without an accommodation. Assuming for purposes of our analysis that Complainant was a qualified individual with a disability, Complainant did not show that the Agency denied her request for a reasonable accommodation after she provided the Agency with sufficient documentation to support the requests or that there were accommodations available that would have permitted her to perform the essential requirements of her position. There is no evidence that the Agency denied her placement in any available positions to which she could have been transferred, or that others, who were similarly situated, were treated more favorably. She did not show that the Agency violated the Rehabilitation Act.
Disparate Treatment
Section 717 of Title VII and Section 633(a) of the Age Act require that federal agencies make all personnel actions free of discrimination. See 42 U.S.C. � 2000e-16 and 29 U.S.C. � 633(a) (all personnel actions in federal employment "shall be made free from any discrimination" based on race, sex or age).
To prevail in a disparate treatment claim, Complainant must 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). We find, with regard to the denial of limited duty assignment and the suspensions, that the record supports the determination that Complainant did not show that she was subjected to discrimination because of her race, sex, age or prior EEO activity. Two of her comparators were of the same race and sex as Complainant. One was older than Complainant. One of the male comparators had engaged in multiple EEO complaint filings.
For these reasons, we find that Complainant did not show that she was treated differently than others outside of her protected group. In addition, she did not show that she was treated differently than others who were similarly situated, because the comparators did not hold the same position (rural carrier) which Complainant held.
Further, we find that 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). The supervisor and other management officials denied a limited duty assignment, because management believed that the documentation that was submitted by, or on behalf of, Complainant failed to support her request for limited duty. She was suspended after she was found to be absent without approved leave and after she engaged in conduct that the supervisor found threatening. Moreover, with regard to the second suspension that was eventually resolved through a grievance, the responsible management official stated that the suspension was based on Complainant's threatening conduct that was witnessed by several managers.
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).
Complainant did not provide evidence to show by a preponderance of the evidence that the Agency's reasons were a pretext for discrimination.
Consequently, we find that the Agency's decision is supported by the record.
CONCLUSION
Accordingly, 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 tends 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
February 12, 2015
__________________
Date
1 The Agency mistakenly referred to Complainant's gender as "his." Complainant is a woman We consider this to be a harmless error.
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0120143066
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120143066