Corrina M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Nov 16, 2017

0120150102 (E.E.O.C. Nov. 16, 2017)

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

Corrina M.,1
Complainant,

v.

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

Appeal No. 0120150102

Hearing Nos. 451-2012-00149X,
451-2013-00208X

Agency Nos. 1G-782-0014-11,
1G-782-0008-13

DECISION

On October 10, 2014, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 9, 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons,
the Commission VACATES the Agency’s final decision and REMANDS the entire complaint
for further action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Processing and Distribution Facility in Midland, Texas. On November 21,
2011, and on March 15, 2013, Complainant filed EEO complaints alleging that the Agency

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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discriminated against her on the bases of race (Hispanic), disability (chronic severe depression),
and in reprisal for prior protected EEO activity when:

1. on August 19, 2011, she was mailed a Letter of Warning for 4 absences;

2. on September 2, 2011, she was denied a reasonable accommodation, specifically,
she was denied use of leave and/or a change of schedule; and

3. on December 8, 2012, she was issued a Seven Day Suspension for Continued
Unacceptable Attendance, Continued Failure to Meet the Attendance
Requirements of her Position.

At the conclusion of the investigations, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before a Commission
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 decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

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. (Aug. 5, 2015) (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”).

Denial of Reasonable Accommodation – Claim 2

An agency is required to make reasonable accommodation to the known physical and mental
limitations of a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p); EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17.
2002). A “qualified” individual with a disability is an “individual with a disability who satisfies
the requisite skill, experience, education, and other job-related requirements of the employment
position such individual holds or desires, and who, with or without reasonable accommodation,
can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). A modification or
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adjustment is “reasonable” if it appears to be “feasible” or “plausible.” Enforcement Guidance at
4. An accommodation also must be effective in meeting the needs of the individual. Id. at 4-5.

In a case brought under the Rehabilitation Act, the complainant has the initial responsibility of
showing that a suggested accommodation is “reasonable” (i.e., that it is generally plausible in the
job being performed by the individual). See U.S. Airways. Inc. v. Barnett, 535 U.S. 391 (2002);
Enforcement Guidance. Once the complainant shows that the requested accommodation is
plausible, the burden then shifts to the agency to show whether the accommodation, even if
plausible, would nonetheless impose an undue hardship (i.e., a significant difficulty or expense)
on the operations of the agency. See Harge v. Dep't of Veterans Aff., EEOC Appeal No.
0120111521 (Dec. 4, 2014), request to reconsider denied, EEOC Request No. 0520140135 (May
29, 2014).

Complainant’s disability requires her to take medication, and when the symptoms of her
condition become severe, she takes additional and higher dosages of medication to help stabilize
her symptoms. This occurs on an unpredictable schedule. The effects of the medication prevent
her from performing normal work duties and require her to take leave on short notice. She also
has been hospitalized twice for her depression. Complainant maintained that she provided the
Agency with documentation for each absence. She requested as a reasonable accommodation
that she be assigned to manual, as opposed to automated, sorting operations and that she be
allowed “liberal use” of leave and schedule changes. After engaging in the interactive process
with Complainant to determine the nature of the accommodation she required, the Agency
conducted a search for positions to which she could be assigned consistent with those work
restrictions. The Agency determined that no positions were available that could accommodate
her disability because “regular attendance” was required in all available positions to maintain
“efficiency.” Final Agency Decision at 25. For this reason, according to the Agency,
Complainant was not afforded a reasonable accommodation.

The Agency’s position is not well taken. The Commission has held that regular attendance on
the job may not be regarded as an essential function in determining whether an individual is
qualified for a position. Gilberto S. v. Dep't of Homeland Sec., EEOC Petition No. 0320110053
(July 10, 2014) (“considering attendance as an essential job function as opposed to a method by
which essential functions are accomplished, leads to the perverse and unacceptable conclusion
that any employee with disability-related absences is an unqualified individual and, therefore,
unable to claim the protections of the Rehabilitation Act.”)

The Agency does not dispute that, if afforded the reasonable accommodation she requires,
Complainant would be a qualified individual with a disability within the meaning of the
Rehabilitation Act. As noted above, the Agency may avoid its obligation to provide a reasonable
accommodation if it can show that to do so would cause it an undue hardship. Perhaps
misapprehending the applicable law, the Agency failed to develop a record as to the nature of
any hardship that would result from providing Complainant with a reasonable accommodation.
This matter will be remanded for a supplemental investigation to permit the development of a
record on that question.

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Disparate Treatment - Claim 1 (Letter of Warning) & Claim 3 (Suspension)

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally 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). The prima facie
inquiry may be dispensed with where 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). 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).

According to the Agency, Complainant was issued a letter of warning and was suspended for
seven days because she repeatedly took unscheduled leave with a frequency and in an amount
that constituted a violation of Agency regulations which require leave to be scheduled in
advance. Absent Complainant’s claim that she is entitled to a reasonable accommodation, this
explanation would constitute a legitimate, nondiscriminatory reason for the Agency’s actions.
However, the Commission has held that it constitutes a violation of the Rehabilitation Act for an
employer to penalize an employee for work missed during leave the employee was entitled to
take as a reasonable accommodation. “[T]o do so would be retaliation for the employee's use of
a reasonable accommodation to which s/he is entitled under the law.” Ricco v. United States
Postal Service, 07A10007 (February 21, 2002), quoting EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act
(March 1, 1999) at question 19. Thus, determination of the viability of Claims 1 and 3 will
depend on the validity of Complainant’s demand for a reasonable accommodation. Resolution of
that question must await completion of the supplemental investigation ordered below.

CONCLUSION

The Commission concludes that the present record lacks the necessary information upon which
to adequately determine if the Agency’s actions were lawful under the Rehabilitation Act. See 29
C.F.R. § 1614.404. Therefore, the Commission remands this case to the Agency to conduct a
supplemental investigation. In light of the Commission’s remand of Complainant’s reasonable
accommodation claim, the Commission declines to fragment the complaint by addressing
Complainant’s disparate treatment claims with respect to claims 1 and 3 on appeal. Accordingly,
the Commission VACATES the Agency’s final decision and REMANDS the entire complaint to
the Agency for further processing in accordance with this decision and the Order below.

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ORDER

Within 120 days of the date this decision is issued, the Agency is ORDERED to take the
following actions:

1. The Agency shall conduct a supplemental investigation to develop an adequate factual
record regarding Complainant’s request(s) for reasonable accommodation, including any
contention by the Agency that provision of a reasonable accommodation would impose
an undue hardship. The Agency shall ensure that the investigator obtains all pertinent
evidence needed to address Complainant’s reasonable accommodation claim including,
but not limited to, sworn affidavits from responsible management officials and other
documentary evidence regarding how management responded to Complainant’s request
for accommodation.

2. The Agency shall thereafter issue a new final decision on Complainant’s complaint,
with appeal rights to the Commission.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). This report must include a copy of the
supplemental investigative report and the Agency’s final action.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)

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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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
1.
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. 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 filed your
appeal with the Commission.
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. Filing a civil action will terminate the administrative processing of your
complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 16, 2017
Date