0120180284
08-15-2018
Danita S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Danita S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120180284
Hearing No. 531-2014-00248X
Agency No. 4K200009213
DECISION
On October 25, 2017, 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 October 6, 2017, 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 AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that she was discriminated against when she was denied the opportunity for a detail, on June 17, 2013, based on her sex (female), disability (right arm injury), and reprisal for engaging in prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's FWA-OXON Station facility in Fort Washington, Maryland. On September 25, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex, disability, and reprisal as set forth above.
The Agency investigated and transmitted the report to Complainant on January 29, 2014. On February 18, 2014, Complainant requested a hearing. The Administrative Judge (AJ) assigned to the case dismissed the request because Complainant failed to comply with a discovery request. The AJ remanded the case to the Agency for the issuance of a final decision. Upon issuance of the Agency's final decision, Complainant filed an appeal with the Commission on January 12, 2015. On April 5, 2017, the Commission vacated the Agency's decision and remanded the complaint for a supplemental investigation regarding Complainant's disability discrimination claim and the issuance of another decision (FAD). Complainant received a copy of the supplemental investigative report on September 18, 2017.
Complainant maintained that S2, (Retired) Postmaster, and S1 (Retired) Supervisor, Customer Services, discriminated against her.2 Complainant stated that she asked and was told that she could go on detail, but Supervisor S1 never released her to detail. Complainant "indicated" that management stated that they would contact all her prior supervisors and managers to obtain their opinion. Complainant contended that from March 2013 to May 2013, S1 asked her to perform certain duties because she would perform the same task as a supervisor.
Complainant stated that on June 17, 2013, S1 denied her a detail to be a 204B Customer Service Supervisor when she had requested it verbally and in writing. The record contained a handwritten note dated September 7, 2013, which stated that Complainant approached S1 in March 2013, asking if she could get training as a supervisor, and he stated he would give her the opportunity. Complainant stated that a 204B was trained at her station but also indicated that on September 4, 2013, she was asked to work as an acting supervisor at the Fort Washington Post Office.
The record contained a PS form 2499, Offer of Modified Assignment (Limited Duty) for Complainant dated January 7, 2013, which provided Complainant duties within her medical restrictions for six (6) hours per day as her conditions required. The record also contains "an illegibly dated physician's note" which stated that Complainant could work 8 - 10 hours daily in an administrative position. Complainant indicated that she does not have total use of her right arm including her elbow, shoulder, and back. She further indicated that she was diagnosed with the medical condition on October 29, 2010, due to a work injury. She contended that her condition was permanent, and she informed management about her condition in October 2010.
Complainant stated that she was required to only lift 30 pounds daily, and that as a result of her medical condition she was not able to carry or lift over 10 pounds, reach above her shoulder, push or pull over 10 pounds or drive a postal vehicle over six hours. She contended that she could not fully grip, squeeze with her hand and was not able to drive over two hours. She indicated that she provided medical documentation that stated her work restrictions every 30 days. Complainant attested to having the following limitations in her personal life, lifting and carrying her purse in her right hand, reaching above her shoulder with her right arm as well as the limited driving. Complainant established that she has impairment and that she is substantially limited by the impairment.
S2 stated that S1 informed him that Complainant was denied the opportunity for a detail because she had restrictions, which included her inability to work a full eight-hour day. He also stated that S1 indicated that he needed a supervisor who could perform all of the duties of the assignment. S2 indicated that, on a later date, he was able to give Complainant a detail to Waldorf, Maryland, as acting supervisor and he believed she was still in that position. S2 testified that neither Complainant's sex, prior EEO activity nor medical conditions were factors when she was denied an opportunity for detail on June 17, 2013.
CONTENTIONS ON APPEAL
Complainant did not provide a statement on appeal.
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").
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, Complainant established a prima facie case of discrimination based on sex, disability and reprisal, we find that the Agency presented a legitimate, non-discriminatory reason for why she was not given a detail opportunity on June 17, 2013. The record indicates that Complainant was seeking a position that required her to perform duties that required lifting and other requirements that were inconsistent with the restrictions she had presented to the Agency. The Agency denied the request because the detail would have required Complainant to perform duties that were outside of her written medical restrictions. The Agency, instead, provided Complainant with another position that allowed her to work within her medical restrictions.
Complainant failed to provide evidence that would demonstrate that the reasons asserted by the Agency were a pretext for discrimination based on Complainant's sex, disability or prior EEO activity. Accordingly, we find that Complainant did not establish that the Agency discriminated against her as alleged.3
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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
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).
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 (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
_8/15/18_________________
Date
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.
2 The record indicated that S1 retired and did not provide testimony in the investigation.
3 To the extent that Complainant is alleging that she was denied a reasonable accommodation when she was not provided a detail on June 17, 2013, we note that the record indicates that she was provided an Acting Supervisor position that effectively allowed her to perform the essential functions of her position.
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01-2018-0284