0120140129
03-25-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120140129
Hearing No. 540-2013-00162X
Agency No. 4E-852-0131-12
DECISION
On September 30, 2013, Complainant filed an appeal from the Agency's August 29, 2013, final decision 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Post Office facility in Bullhead City, Arizona. She had been employed by the Agency since 1986.
On October 6, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Obsessive Compulsive Disorder) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when she was subjected to a hostile work environment, disparate treatment, and denied reasonable accommodation.
In support of her claims of discrimination, Complainant alleged that the following events occurred:
1. On May 1, April 27, and August 23, 2012, Complainant was not allowed the chance to get back up to speed following her return to work after her carpal tunnel injury.
2. On May 3, 2012, Complainant was denied reasonable accommodation.
3. On May 9, 2012, Complainant was given an instruction sheet limiting her use of tubs, which contradicted the letter dated April 27, 2012, stating that she could use the tubs and a step.
4. On May 11, 2012, Complainant was issued a warning for failure to follow instructions.
5. On May 23, 2012, Management gave Complainant a letter, requesting she provided them with her personal medical documentation.
6. On May 9 and 24, 2012, Complainant was humiliated on the workroom floor when the Supervisor told her that her box of supplies were "messy," made fun of Complainant because she could not remember the numbers and counts, and told that her could not get her counts before work and she was not provided with hard copy of stand-ups talks when these were held on her day off.
7. On August 3, 2012, Complainant was told not to call in at 3:00 pm, if she could not deliver the mail within the time allotted.
8. On August 7, 2012, she was given instructions not to walk around her vehicle to check doors and windows.
9. On August 9 and October 4, 2012, during the District Reasonable Accommodation Committee (DRAC) meeting, her Supervisor was allowed to stay in the meeting and was provided with her private medical information.
10. On August 15, 2012, Complainant was not allowed official time to write up PS Forms 3849 (delivery notice).
11. On August 15, 2012, Complainant was issued a Letter of Warning (later reduced to a "six month" through a grievance settlement) for Failure to Follow Instructions.
12. On August 28, 2012, a GPS tracking device was installed in Complainant's postal vehicle.
13. On December 3 and 28, 2012, Complainant was given a "LLV1 diagram" and was told by her Supervisor that she had to follow and explain the diagram or she would be disciplined.
14. On December 4, 2012, Complainant's request for two (2) hours overtime was denied.
15. On December 4, 2012, Complainant was not allowed to speak to her union representative.
16. On December 28, 2012, Complainant was informed that the platform step was going to be removed from her case. The step was used by Complainant pursuant to a shoulder injury that resulted in a restriction on raising her arms over her head.
The Agency accepted the complaint except for event (15). The Agency dismissed event (15), pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim because it alleged a violation of her rights under the collective bargaining agreement rather than constituting a claim of discrimination. The Agency conducted an investigation into all of the other events Complainant raised in support of her claims of denial of reasonable accommodation and 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 initially requested a hearing, but later withdrew her request. As such, 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 its final decision, the Agency initially dismissed events (1) - (5), (7) - (10), (12) - (13), and (16) for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), determining there was no evidence that Complainant was harmed by these events. In the alternative, however, the Agency assumed, for sake of argument, that these events did state a claim and then considered them in analyzing Complainant's claims of disparate treatment, harassment and denial of reasonable accommodation.
The Agency held that Complainant established that she is an individual with a disability covered under the Rehabilitation Act. The Agency noted that Complainant has been diagnosed with Obsessive Compulsive Disorder (OCD) since at least November 1999. Complainant averred that her condition caused her to be a hoarder. She saves everything in her house, garage and sunroom which are all filled to the ceiling. She also noted that she is a "checker" in that she checks and rechecks doors, lights, electrical plugs and outlets, door locks, locks on her car, garage door, and hotel door. She stated that it could take her up to an hour just to leave the house. She also indicated that her thoughts jump back and forth to things and she needs to follow a pattern to help keep her from feeling anxiety. She needs things organized in boxes and to see things written out.
The Agency determined that management witnesses provided legitimate, nondiscriminatory reasons for each of the actions cited by Complainant. The Agency further held that Complainant failed to prove that the alleged actions were of a nature sufficient to create a hostile work environment, or that the events occurred because of her disability and/or prior EEO protected activity. Therefore, the Agency concluded that Complainant failed to show that the Agency actions constituted discrimination based on her disability and/or reprisal for her prior protected activity.
The instant appeal followed. On appeal, Complainant asserts that she has been abused by management because of its ongoing efforts to control what they wanted her to do instead of allowing her to work in the manner that gets the work done. She asserted that she informed the management as early as 1999 that she was diagnosed with OCD. She states that she requested reasonable accommodations for her OCD just so that she could continue to do the things she has been permitted to do for years without an issue. She noted that the Agency failed to timely respond to her request.
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").
Dismissal for Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
We find that the dismissal of event (15) was appropriate. In event (15), Complainant alleged that she was denied her union representative. We find that this event was alleging a violation of the collective bargaining agreement rather than a claim of discrimination. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenge the denial of union representation is within the negotiated grievance process, not the EEO complaint process. Therefore, we affirm the Agency's dismissal of allegation (15).
As to the other issues dismissed in the Agency's final decision, we find that the Agency improperly dismissed events (1) - (5), (7) - (10), (12) - (13), and (16). We note that some of these events by themselves state a claim of denial of reasonable accommodation such as events (2), (3), and (8). In addition, we determine that these and all the other events in her formal complaint constituted her assertion that she was subjected to discriminatory harassment which created a hostile work environment. Instead of treating these events as evidence proffered in support of her claim of ongoing harassment, the Agency looked at them individually when dismissing them. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when the incidents are viewed in the context of Complainant's complaint of harassment, they state a claim and the Agency's dismissal of those claims for failure to state a claim was improper. As such, we shall address these events as part of Complainant's claim of harassment.
In sum, we find that Complainant has raised viable claims of disparate treatment; unlawful medical inquiry and release of medical information; denial of reasonable accommodation; and ongoing harassment.
Denial of Reasonable Accommodation - Events (1), (2), (3), (4), (7), (8), and (10)
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. We note that the Agency does not contest that Complainant is an individual with a disability pursuant to the Rehabilitation Act based on her Obsessive Compulsive Disorder.
Complainant also must show that she is a "qualified" individual with a disability within the meaning of 29 C.F.R. � 1630.2(m). The term "qualified individual with a disability" is defined as an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. � 1630.2(m). The Agency has not questioned Complainant's qualifications to perform her job. Therefore, we shall review whether the Agency violated the Rehabilitation Act by failing to provide Complainant with reasonable accommodation for her disabling condition.
In events (1) and (2), the record indicated that Complainant had been out of work on an extended medical leave due to an on-the-job physical injury in February 2012. She returned to work on April 27, 2012. She asserted that upon her return, her Supervisor started prohibiting her from writing things down. She claimed that she wanted to write things down so she could get back into the groove of casing and delivering mail. She averred that she had regularly write information down since she began working with the Agency. She noted that the Supervisor started changing his instructions back and forth, causing her anxiety and making her fear that she would lose her job. She asserted that all she wanted to do was to be allowed to write down all the counts. She claimed that this was done by many other carriers. In event (8), Complainant also requested that she be allowed to recheck locks, recheck her vehicle, and keep a log of when she scanned MSP scan points. The Supervisor asserted that Complainant's actions were being corrected because they were inefficient and stated that she failed to provide adequate medical documentation to support her requests.
In May 2012, Complainant submitted a formal written request for these accommodations. Management witnesses stated that the request was forwarded to the DRAC upon receipt. Complainant's psychologist submitted a letter dated May 14, 2012 in support of her request. The record also indicates that by letter dated August 22, 2102, Complainant's psychologist again wrote a letter to the Agency supporting Complainant's request for accommodation consisting of permission to "writ[e] down numbers and counts and writ[e] down when she passes scan points so that she doesn't obsess about her production." The psychologist noted that Complainant was not asking for any change in her route, extra time to complete her route or even any adjustment of procedure. He added, "[i]n my twenty years as a clinical psychologist I have never seen a reasonable accommodation that required less of the employer (in this case nothing) and was very surprised that this was a reasonable accommodation issue at all (as opposed to just letting her do this)."
By memorandum dated October 6, 2012, the DRAC reviewed Complainant's accommodation request and approved allowing her to "write down [her] scan point times and [her] volume measurements for DPS, parcels, accountable mail and hotcase mail." In doing so, the DRAC determined that Complainant would be "able to perform the duties of [her] letter carrier position efficiently and within the allowable route evaluation time."
Upon review, we find that Complainant made management, including her immediate Supervisor, aware of her need to write things down and to recheck locks and the vehicle and that these actions were needed due to her medical condition. The DRAC approved Complainant's requested reasonable accommodations in October 2012, five months after she initially submitted her formal request.
An employer should respond expeditiously to a request for reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (revised October 17, 2002) at question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation of the ADA. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Id. at n. 38.
Upon review of the record, we find that the DRAC agreed to provide Complainant with the requested accommodations, but that it did so some five months after Complainant submitted her formal written request. We find that Complainant's requested accommodations were not complex, required no extra equipment or expenditure, and involved actions she had previously been allowed to do. There is no clear reason for the delay in the DRAC reviewing her request. In fact, it appears that the DRAC meeting did not occur until it was arranged pursuant a resolution of a grievance agreed upon by the Postmaster and the Union. Based on the record, we find that the delay in providing Complainant with her requested accommodations was unnecessary. As such, we conclude that the Agency violated the Rehabilitation Act with respect to events (1) and (2). Further, Complainant was issued instructions in event (8) informing her not to check her vehicle and windows. We find that event (8) also constituted a violation of the Rehabilitation Act.
In event (10), Complainant asserted that she was not provided office time to fill out her Form 3849s regarding her street time. She asserted that other employees with medical limitations were permitted to fill out the form in the office. She claimed that she asked the Supervisor to accommodate her and allow her to do the same. She indicated that this request was related to her need to "write stuff down." She asked to be able to do the forms in the office. The Supervisor averred that Complainant could not do the forms in the office and had to fill it out on street time pursuant to the Agency's handbook. The only explanation the Supervisor provided was that the forms should be completed by the proper procedure. However, no evidence has been provided that to allow Complainant to complete her forms during office time would have caused an undue hardship. Therefore, we find that the failure to allow Complainant office time to complete her Form 3849s as a reasonable accommodation was also a violation of the Rehabilitation Act.
In May 2012, Complainant indicated that she was given an instruction to limit the use of tubs as alleged in events (3) and (4). She stated that she had been a carrier for 17 years and for the first time, the Supervisor stated that she needed to ask for permission before using tubs. Complainant indicated that in May 9, 2012, the Supervisor provided her with a Letter of Instruction suggesting, among other things, that she used too many tubs. Complainant indicated that she used several tubs to keep them from getting too heavy and that she had had surgeries on her shoulder. We note that this is unrelated to her OCD. Therefore, the issue of the tubs was not a request for a reasonable accommodation with regard to her OCD.
Claim Regarding Medical Information - Events (5) and (9)
In event (5), Complainant alleged that the Supervisor violated the Rehabilitation Act when he asked for medical documentation by letter dated May 23, 2012. Then in event (9), Complainant asserted that during the DRAC meeting, the Supervisor was present while her medical information was discussed. She believed that the Supervisor should not have asked for or received her medical information.
As an initial matter, we note that the Rehabilitation Act was amended in 1992 to apply the standards of the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance - Disability Related Inquiries), No. 915.002 (July 26, 2000); Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997); and EEOC Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations (Enforcement Guidance - Preemployment) (October 10, 1995). Because the restrictions on employers with regard to disability-related inquiries and medical examinations apply to all employees, and not just to those with disabilities, it is not necessary to inquire whether the employee is a person with a disability. Enforcement Guidance - Disability Related Inquiries, p. 3.
The Rehabilitation Act places certain limitations on an employer's ability to make disability-related inquires or require medical examinations of employees including that it be job-related and consistent with business necessity. 29 C.F.R. �� 1630.13(b), .14(c). Generally, a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that an employee's ability to perform essential job functions may be impaired by a medical condition. Enforcement Guidance - Disability-Related Inquiries, at 15-16. It is the burden of the employer to show that its disability-related inquiries and requests for examination are job-related and consistent with business necessity. Id. at 15-23.
With respect to event (5), the Supervisor requested medical documentation to support Complainant's request for a reasonable accommodation. We find that such a request for documentation is job-related and consistent with business necessity. Clearly, the Supervisor made the request in order to assess Complainant's request for a reasonable accommodation. The Commission has stated that the employer is entitled to know that an employee has a covered disability that requires a reasonable accommodation. Thus, when the disability or the need for the accommodation is not known or obvious, it is job-related and consistent with business necessity for an employer to ask an employee for reasonable documentation about his/her disability and its functional limitations that require reasonable accommodation. Enforcement Guidance - Disability-Related Inquiries, at. question 7. As such, we determine that the Supervisor's request was not a violation of the Rehabilitation Act.
In event (9), Complainant believed that the DRAC should not have included the Supervisor at the meeting to determine whether the Agency could provide Complainant with her requested reasonable accommodations. She believed that the Supervisor should not be privy to her medical information. Again, we find that the Supervisor's attendance at the DRAC meeting was job-related and consistent with business necessity. The Supervisor would be implementing the DRAC's decision regarding Complainant's requested accommodations. Therefore, we find that the Supervisor's attendance at the DRAC meeting was not a violation of the Rehabilitation Act.
Harassment - Events (1) - (4), (6)-(8), (10 - 14), and (16)
It is well-settled that harassment based on an individual's disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she is a qualified individual with a disability covered under the Rehabilitation Act and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
As noted above, the Agency did not contest that Complainant is a qualified individual with a disability covered under the Rehabilitation Act. Further, the record showed that Complainant engaged in protected activity when she requested reasonable accommodation in May 2012.2 We also note that there is no question that the alleged actions were unwelcomed. As such, we find that Complainant establish elements (1) and (2) of her claim of harassment.
As to element (3) of her case of harassment, we find that Complainant established that the majority of the alleged incidents were connected to her disability because they involved the Supervisor prohibiting actions that Complainant established were necessary to reduce her anxiety caused by her OCD and his unwillingness to accommodate the symptoms of her OCD. The Supervisor provided inconsistent statements in his affidavit. When asked specifically about Complainant's medical condition, he asserted that he was not aware of her condition. However, later, he stated that Complainant "claimed OCD which Complainant claimed to cause her to repeat thing over and over." He also averred that Complainant claimed that her OCD made her handle "pieces of mail several times over and over and other issues which has the appearance of a time wasting practices."(sic). Further, in response to Complainant's request for reasonable accommodation, the Supervisor stated that he called the medical unit regarding her "claim of OCD." Upon review of the record, it was clear that the Supervisor was aware of Complainant's medical condition and that she had requested reasonable accommodations based on that medical condition.
With regard to element (4), we turn to the events themselves. Complainant alleged that the Supervisor created a hostile work environment based on his failure to provide her with her requested accommodations, subjecting her to disciplinary letters, and other actions. She indicated that he was inconsistent in his instructions, allowing her to write down counts on one day and denying her the ability to do it the next. She indicated that he knew that this would throw her off her pattern and rhythm. When she informed the Supervisor about the need to write things down due to her OCD, Complainant asserted that the Supervisor began changing the way she performed her job as alleged in events (1), (3), (4), (7), (8), (13), and (16). He began telling her to use fewer tubs as evidenced by the Instruction Letter dated May 9, 2012. She indicated that she tried to explain that it was part of her pattern and her condition. She noted that the changes continued causing her extreme anxiety. He would allow her to check her locks and the vehicle one day, and then tell her not do it the next. Also despite being aware of her OCD, the Supervisor gave her a written instruction not to walk around her Agency vehicle. She asserted that he was aware that she had to make sure all the doors and windows were closed. She argued that she was the only carrier who had a limit on the tubs and told that she had to change the way she loaded her vehicle. She also alleges that he threatened to remove the platform step from her workspace, again to throw her off her routine.
In event (13), Complainant indicated that she was given a diagram of her vehicle with specific instructions on how to load her vehicle. She averred that the Supervisor stated that if she did not follow the instructions, she would be subjected to discipline. She asserted that she informed him that due to her OCD she needed time to get up to speed. She stated that the Supervisor threatened her with discipline if she did not follow the instructions. She indicated that the Supervisor intimated to her Union Steward that he was working toward giving Complainant a seven-day suspension. Following the issuance of the diagram, Complainant asserted that this caused more disruption to her pattern. As a result, she indicated that it took her more time to do her route and needed to request overtime in event (14). Complainant averred that she had been a carrier for years and could do her route in the proper time so long as she could keep to her pattern. However, the Supervisor's actions disrupted her and Complainant believed that this was intentional in order to get her to fail.
In addition to the changes in procedure, Complainant stated she was also singled out in other ways in the workplace. Complainant claimed that he told her that her work station was "messy" even though other workstations in plain view were in a worse state. She averred that he said this in a loud tone so that all could hear. She stated she was given stand-up talks criticizing her need to record her counts. She also indicated that there was a standard operating procedure that employees were to call in by 3:00 p.m. in order to request assistance and/or overtime if they could not complete their route by 5:00 p.m. She said she was the only carrier who was instructed that she could not call for assistance.
Despite his knowledge of Complainant's OCD, the Supervisor asserted that many of Complainant's actions appeared to be time-wasting and he wanted to work on her efficiencies. However, Complainant had made him keenly aware that changing her patterns caused her anxiety and his continued actions heightened her state due to her medical condition.
The record also included affidavits from Complainant's co-workers (Co-worker 1 and Co-worker 2). Co-worker 1 averred that that she witnessed the Supervisor inform Complainant about the use of the tubs. She noted that he singled Complainant out and did not allow her to keep tubs in her space, like everyone else is permitted to do. Co-worker 1 also stated that the management treated Complainant with specific disdain and disrespect. She stated that the Supervisor was reasonable with everyone except for Complainant. Co-worker 2 stated that he witnessed management making "special rules" only for Complainant. We do note that a third Co-worker provided an affidavit stating that he did not observe the Supervisor harassing Complainant and that for him and most of his co-workers, the workplace is "good and fun." However, based on the totality of the circumstances and the evidence in the record, we determine that the Supervisor's actions in changing Complainant's routines and singling her out for harsher treatment showed an insensitivity to her medical condition and caused her significant and foreseeable anxiety sufficient to constitute a hostile work environment based on her disability.
Further, to the extent Complainant alleged unlawful retaliatory harassment, following Complainant's request for a reasonable accommodation, record shows the Supervisor made it more difficult for Complainant to perform her job duties. Complainant indicated that after she made the request, he began raising issue with the number of tubs she used and threatening her use of the step stool at her case. He also took it upon himself to micromanage her route. She stated that the constant instructions made things more difficult because he was changing her patterns again. Upon review, we find some evidence that the Supervisor's actions were also based on Complainant's protected EEO activity of requesting reasonable accommodation.
Finally, as to the element (5) of her harassment claim, we find that Complainant has met her burden of establishing that the Agency was liable for the harassment because the acts were committed by her Supervisor. An employer is subject to vicarious liability for unlawful harassment if the harassment was "created by a supervisor with immediate . . . authority over the [complainant]." Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) ("Vicarious Liability Guidance"), at 4 (citing Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 , 118 S.Ct. 2257, 2270 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998)). We note that the record indicated that the Supervisor took tangible employment actions as well as non-tangible actions against Complainant. Accordingly, the Commission concludes that Complainant has established the Supervisor subjected her to harassment based on disability and reprisal.
Disparate Treatment - Disability - Event (12)
In her complaint, Complainant also alleged that she was subjected to unlawful disparate treatment based on her disability. Specifically, she alleges that a GPS tracking device was placed on her postal vehicle, causing her more anxiety and stress.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). See also Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, a complainant must demonstrate that: (1) she is an "individual with a disability"; (2) she is "qualified" for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the agency to articulate a legitimate, nondiscriminatory reason for the adverse employment action. In order to satisfy his burden of proof, a complainant must then demonstrate by a preponderance of the evidence that the agency's proffered reason is a pretext for disability discrimination. Id.
Here, as noted above, the Agency did not contest that Complainant is a qualified individual with a disability. It is also undisputed that Complainant had a GPS system installed in her postal vehicle, while other carriers did not. The Supervisor and the Postmaster averred that the DRAC placed the device on Complainant's vehicle. The Supervisor added that it was unnecessary because there had never been any concern with Complainant's whereabouts. However, the Human Resources Manager averred that the DRAC's recommendation did not include that the GPS device be placed on Complainant's vehicle and the DRAC results documents similarly does not include a GPS device. Based on the record and the conflicting information, we find that there has been no articulated reason for the GPS. Finding that Complainant has established her prima facie case of disability-based discrimination and the Agency failed to meet its burden, we find that Complainant has shown that the Agency subjected her to disparate treatment with respect to event (12).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part as to the Agency's findings as to events (5), (9) and (15). In addition, we REVERSE in part the Agency's final decision and find that the Agency violated the Rehabilitation Act with respect to events (1) - (4), (6) - (8), (10) - (14). The matter is REMANDED for further processing in accordance with the ORDER below.
ORDER (C0610)
The Agency is ordered to take the following remedial action:
1. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
2. The Agency is directed to conduct at least eight (8) hours of EEO training for the Supervisor who was found to have subjected Complainant to harassment and failed to provide Complainant with reasonable accommodation. The training shall address the Supervisor's responsibilities under the Rehabilitation Act, with a special emphasis on mental disabilities, as well his responsibilities for handling reasonable accommodation requests. The Agency shall also consider taking disciplinary action against the Supervisor. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons for its decision not to impose discipline.
3. The Agency is also directed to conduct training for the responsible Postmaster and members of the DRAC concerning the reasonable accommodation process and the need to process requests for accommodation in a timely manner.
4. The Agency shall complete all of the above actions within 120 calendar days from the date on which the decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Bullhead City Post Office copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
March 25, 2014
__________________
Date
1 The LLV refers to the Agency vehicle.
2 We note that a request for reasonable accommodation of a disability constitutes protected activity under the Rehabilitation Act. In particular, it is unlawful to coerce, intimidate, or threaten any individual who has exercised any right granted, such as requesting a reasonable accommodation, under the Rehabilitation Act. 29 C.F.R. � 1630.12.
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0120140129
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140129