Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jun 21, 2013

0120113638 (E.E.O.C. Jun. 21, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120113638

Hearing No. 443-2011-00043X

Agency No. 4J-600-0067-10

DECISION

On July 13, 2011, Complainant filed an appeal from the Agency’s final order concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. The Commission accepts the appeal for de novo pursuant to 29 C.F.R.
§ 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final
order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Carrier
Technician at the Agency’s Post Office in Mount Prospect, Illinois. On June 20, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of disability and in reprisal for prior protected activity when she was denied reasonable
accommodation and subjected to hostile work environment harassment. 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. Over Complainant's objections, the AJ assigned to
the case granted the Agency’s motion for summary judgment and issued a decision on May 5,
2011.

In her decision, the AJ found that the Agency provided Complainant with reasonable
accommodation. Specifically, Complainant had tendonitis in both ankles and during flare ups
had great difficulty walking. Consequently, during the flare ups, Complainant’s supervisor
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assigned her to routes that minimized the distance she had to walk and also provided her with
auxiliary assistance to complete the routes. Although Complainant did not always get assigned
the route she wanted, the AJ found that she was not entitled to the accommodation of her
choice, only to an effective accommodation – which the Agency provided.

With regard to her harassment claim, the AJ identified the following incidents as evidence of
the alleged hostile work environment. Complainant’s supervisors subjected her to daily
confrontations and attacks; singled her out regarding her office return times; denied her request
for union time to address the disparity in return times; denied her request for a different route
but provided auxiliary street assistance; interrupted her, instructed her to look for a piece of
mail and sabotaged her performance; did not allow her official time on April 1, 2010, the day
requested, but did the next day; gave her a verbal "pre-disciplinary warning"; and did not
grant her request to change to route 5695, but provided an alternative route and auxiliary street
assistance. The AJ found that:

Complainant did not describe severe or pervasive conduct directed at her based
on her disability or prior EEO activity. She gave no examples of "daily"
confrontations or "attacks" other than to say on one occasion her supervisor
addressed her in an "angry tone." In addition, she failed to describe how her
performance was "sabotaged." Complainant never provided more specific
information to the EEO investigator or in the response to the Agency's Motion
for a Decision on the Record.

AJ Decision at 10. The AJ concluded that management was acting within its proper authority
to approve and deny requests, assign routes and tasks, and question performance and that these
actions were not examples of severe or pervasive harassment but rather, normal exchanges
between a supervisor and a subordinate. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

ANALYSIS AND FINDINGS

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). 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.

Upon review of the record, we discern no basis to disturb the AJ’s decision. Regarding the
reasonable accommodation claim, there is no dispute that management assigned Complainant
appropriate routes and provided auxiliary assistance during her ankle flare ups. Complainant
has not offered evidence that these accommodations were ineffective, she argues only that she
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did not receive the route she wanted. Thus there is no material fact in dispute with regard to
this claim, and summary judgment was appropriate.

To prove her harassment claim, Complainant must establish that she was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in Complainant’s position
would have found the conduct to be hostile or abusive. Complainant must also prove that the
conduct was taken because of a protected basis, i.e., in this case, disability or prior protected
activity. Only if Complainant establishes both of those elements, does the question of the
Agency’s liability for harassment present itself.

We agree with the AJ that the alleged incidents were neither so severe nor so pervasive that a
reasonable person in Complainant’s position would have found them to be abusive. There is
no dispute that Agency managers have to manage both the work and the employees doing it.
The AJ correctly concluded that the incidents alleged in this case are examples of management,
not harassment. As to this claim, summary judgment was also appropriate. The Agency’s
final order is AFFIRMED.

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.

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
0120113638

4
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

June 21, 2013
Date