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

Equal Employment Opportunity CommissionJul 9, 2014
0120110337 (E.E.O.C. Jul. 9, 2014)

0120110337

07-09-2014

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


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120110337

Hearing No. 460-2009-00112X

Agency No. 4G-770-0403-08

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 23, 2010, 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. For the following reasons, we affirm the Agency's final order which fully implemented the EEOC's Administrative Judge's (AJ) decision which found that Complainant failed to show that she was subjected to discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked in a limited duty position as a Sales, Services, Distribution Associate, PS-6 at the Agency's Willow Place Station in Houston, Texas. On November 5, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (lower back and right foot/ankle), when:

1. on or about September 2, 2008, she was informed that her Saturday and Sunday regularly scheduled days off were changed to Tuesday and Sunday; and

2. on January 31, 2009, she was allegedly forced to retire?

Following an investigation by the Agency, Complainant requested a hearing before an AJ. The Agency submitted a motion for summary decision and Complainant responded to the motion. After reviewing the information provided, the AJ issued a decision without a hearing in favor of the Agency. The record revealed that Complainant accepted a limited duty assignment to the clerk craft on August 23, 2007. When she accepted the modified assignment, her seniority date changed to September 1, 2007. Complainant's reassignment gave her Sundays and Thursdays off. While she was assigned those days her former manager allowed her to take Saturday and Sunday off. When a new manager (NM) arrived however, she noticed that Complainant frequently also took Mondays off as well. The NM investigated the matter and found that Saturday was not Complainant's assigned day. The NM informed Complainant that she could not have Saturdays off as it impacting the workflow of the office. Complainant maintained that her accommodation required that she have two consecutive days off. Complainant was asked to provide medical documentation supporting her assertion. Complainant maintains that other employees were not subjected to a change in their days off.

The AJ found that assuming arguendo that Complainant established a prima facie case of disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant failed to provide medical documentation which supported her claim that she needed consecutive days off. Moreover, her taking Saturdays off caused problems for the station's operations. The Agency explained that the comparators offered by Complainant were not similarly situated to her as one was not a clerk and the other employee that was a clerk had dissimilar duties to Complainant.

Further, with respect to Complainant's claim that she was constructively discharged, the record showed that the area was undergoing numerous excesses of employees due to the declining mail volume. In December 2008, Complainant and two clerks were to be excessed from their location at Willow Place Station and were to be transferred to the General Post Office (GPO). Complainant was scheduled to report to the GPO on December 31, 2008. Prior to the transfer of any excessed limited duty clerks, a meeting was held with the DRAC committee to address accommodations. Complainant was scheduled for a DRAC interactive meeting on December 16, 2008. At the meeting, Complainant stated that she did not want to participate because she planned to retire effective January 31, 2009. Complainant completed the required documents, and indicated her intention to retire on that date and noted "would like to be dismissed." Complainant retired from the Postal Service effective January 31, 2009.

The Agency maintained that Complainant made no mention at the time of the meeting that her impending transfer to the GPO would cause or did cause her stress. Nor did Complainant during her DRAC meeting, point out that she needed to have consecutive days off. Likewise she did not offer any physician's note or other medical documentation regarding a need for consecutive days off. The AJ found that there was nothing to suggest, other than Complainant's assertions, that she was forced to retire, or that the transfer would have violated her restrictions. The AJ also found that Complainant's failure to provide evidence of the need for such an accommodation precluded liability under the Rehabilitation Act. Thus, the AJ found that Complainant failed to demonstrate that she was subjected to discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that she gained her position at the Willow Place Station as a result of a settlement agreement. She maintains that the agreement provided that her off days were Saturday and Sunday. She also contends that it was a workplace agreement between her and the manager at Willow Place for her to have those days off. Complainant contends that she was treated differently than the other clerks in the office. She maintains that she retired because she felt that the Agency was harassing her by not giving her consecutive days off.

In response, the Agency contends, among other things, that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination. The Agency asserts that the AJ properly found that Complainant failed to prove her case.

ANALYSIS AND FINDINGS

After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order. First, we find that the AJ properly issued a decision without a hearing because there are no material facts at issue. Next, we find that even if we assume arguendo that Complainant established that she is a qualified individual with a disability, we do not find that she was denied a reasonable accommodation here. Like the AJ, we note that Complainant's medical documentation did not support the need for consecutive days when the change to her contractual allowed days was being made. Furthermore, when Complainant was asked to provide additional medical documentation to support her claim she did not do so. Williams v. USPS. EEOC Appeal No. 0120081584 (2009) (agency not required to provide accommodation if employee fails to provide relevant medical documentation).

Further, with respect to claim 2, Complainant allegation of a constructive discharge, the central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17. 2002). The Commission has established three elements which a Complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the Complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the Complainant created the intolerable working conditions; and (3) the Complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995).

Upon review, we find that Complainant failed to show that her working conditions were intolerable. As such, we conclude that Complainant did not establish that her resignation constituted a constructive discharge. In fact, the evidence shows that Complainant voluntarily announced during her meeting with the DRAC committee that she would be retiring soon and did not need to go through the process. We find that Complainant provided no evidence that suggested that she was under duress or was being discriminated against so severely that she was forced to resign. We note that on appeal, the crux of Complainant's argument is that other employees were treated more favorably. The evidence however, shows that the comparators offered by Complainant were not similarly situated to her. They were either in a different craft, had different duties, had different accommodations, or had more seniority as Complainant's seniority changed when she selected the position at Willow Place Station. We find that other than Complainant's conclusory statements she has provided no evidence which demonstrates that she was subjected to discrimination. Therefore, we find that the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.

Accordingly, the Agency's final order finding no discrimination 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 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

__7/9/14________________

Date

2

0120110337

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120110337