Jessica E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

0120181724 (E.E.O.C. Sep. 17, 2019)

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

Jessica E.,1
Complainant,

v.

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

Appeal No. 0120181724
Hearing No. 430-2017-00467X
Agency No. 4K290000717

DECISION

On April 25, 2018, 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
April 3, 2018, 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.

ISSUES PRESENTED

In the instant appeal, we examine whether the final agency decision (FAD) properly found that
Complainant did not establish that she was discriminated against or subjected to harassment based
on race (African-American), sex (female), disability, and reprisal for prior protected EEO when:

1. On September 12, 2016, and September 15, 2016, her medical information was reviewed
by an acting supervisor;
2. On September 12-15, 2016 management stated they were going to conduct an investigative
interview since she refused to sign paperwork;

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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3. Since December 15, 2016, she was provided 3 hours of work in her own craft, and 5 hours
per day in the clerk craft;
4. On dates to be provided, she has not been permitted to take her breaks with coworkers;
5. On dates to be provided, her request to become an acting supervisor was denied;
6. On a date to be provided, she was accused of harassing a coworker;
7. On dates to be provided, management and coworkers spoke to her in a demeaning manner;
and
8. On dates to be provided, she was required to provide updated medical information.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Greenwood Post Office facility in Greenwood, South Carolina. The Agency’s FAD
thoroughly discussed the facts in the record, and the instant decision incorporates them as stated.
On January 25, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her as articulated above.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the
AJ subsequently dismissed the hearing request. On February 27, 2018, the AJ remanded the matter
to the Agency for issuance of a final decision. On April 3, 3018, 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.

The instant appeal followed. Complainant failed to file a brief in support of her appeal. In response
to Complainant’s notice of appeal, the Agency submitted a brief in opposition which requested
that the Commission affirm the FAD because Complainant failed to establish a prima facie case
of discrimination. Additionally, the Agency contends that no facts in the instant matter raise an
inference of discrimination based on race, sex, disability or reprisal, nor did Complainant show
that management’s asserted legitimate, non-discriminatory reasons were pretext for
discrimination.

STANDARD OF REVIEW

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”).

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ANALYSIS AND FINDINGS

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d 545 F.2d 222 (1st Cir.
1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially 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). 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). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502,
519 (1993).

Assuming, arguendo, Complainant established prima facie cases of discrimination based on race,
sex, disability and reprisal for engaging in prior EEO activity, we find that the Agency articulated
legitimate, non-discriminatory reasons for the incidents Complainant cites to establish her claim,
and that Complainant did not demonstrate that any conduct on the part of the Agency was based
on discriminatory animus. A review of the record supports the Agency’s finding in the FAD that
several of the alleged incidents did not occur. There is also no persuasive evidence in the record
that Complainant: was ever advised that she would be subjected to an investigative interview
because she failed to sign an Offer of Modified Assignment; or that the Postmaster or her
Supervisor spoke to her in a demeaning manner.

Claim 1: Improper Review of Medical Information

With respect to Complainant’s allegation that her medical information was shared with a 204B
Supervisor, the record reflects no one reviewed Complainant’s medical records as the records were
in Columbia, South Carolina and the Postmaster, Complainant, and the 204B Supervisor are in
Greenwood, South Carolina. The Postmaster acknowledged that in an effort to find a suitable
Modified Assignment for Complainant, she reviewed Complainant’s limitations as noted on her
CA-17 form. 2 Pursuant to 29 C.F.R. § 1630.14 (c)(1)(i), examination of employees medical
condition or history is permissible in order to ascertain informed regarding necessary restrictions
on the work or duties of the employee and necessary accommodations.

2 The CA-17 is a form which the Office of Workers Compensation Programs directs both the
injured worker’s supervisor and his/her treating physician to complete. It is split into two sections.
Side A is completed by the employee's supervisor. Side B is completed by the employee's treating
physician.
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The record reflects that Complainant’s limitations were the only items reviewed, and the document
was never presented to the 204B Supervisor. We agree with the FAD’s finding that the Postmaster
was only reviewing Complainant’s medical records, and discussing the information reviewed with
the 204B Supervisor in the context of obtaining information of necessary restrictions on
Complainant’s work and duties, as well as, any necessary accommodations. In this context the
review and disclosure of Complainant’s medical information was permissible because it was job-
related and consistent with business necessity.

Claim 3: Work Assignments Outside Craft

Complainant alleges that she was improperly assigned to work outside her craft. The record
reflects that Complainant was only assigned work outside her craft after management determined
there was no additional work within her craft that also complied with her medical restrictions, and
we find no evidence of discrimination on these facts. The Commission concurs with the Agency’s
finding that this was not discriminatory.

Claim 4: Prohibited from Taking Breaks

Complainant does not begin her work day until 8:00 am in the clerk craft as a result of her medical
restrictions. The carriers take a break at 8:40 am which permits the clerks to get them the remaining
mail. In light of her duties in the clerk craft beginning at 8:00 am, 8:40 am would be too soon for
Complainant to take a break after her arrival at work. Additionally, while performing clerk craft
duties, Complainant has a deadline to get the remaining mail to the carriers before they return from
their morning break.

Claim 5: Denied 204B Opportunity

With respect to Complainant’s allegation that she was prohibited from becoming a 204B
supervisor, the record reflects that the Postmaster advised Complainant of the steps she must
complete to pursue a 204B position. The record is void of any evidence that Complainant
completed the ECareers process, met the 204B attendance requirement, and completed the skill
bank requirements. Without evidence that she completed the required steps and was still denied
the opportunity to seek a 204B position, we find that Complainant was unable to establish that the
Agency discriminated against her with respect to this allegation.

Claim 8: Updated Medical Documentation Requested Every 30 Days

Complainant’s allegation that she was improperly asked to provide medical updates every 30 days
is without merit. The record reflects that the Department of Labor required updated medical
information every 30 days for worker’s compensation claims, and as a result, the Agency’s policy
was to request this information from employees. Complainant was receiving worker’s
compensation benefits and was notified that she was required to provide an updated CA-17 every
30 days.
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The record reflects that Complainant had frequently been asked for the documentation, and that
she often made excuses for neglecting to provide the documents or bring improper paperwork.

Claims 2, 6 & 7: Investigative Interview, Accused of Harassment and Spoken to in a Demeaning
Manner

The record is void of any evidence that Complainant was advised that she would be subjected to
an interview for refusing to accept a modified offer, that she was spoken to in a demeaning manner
by the Postmaster or any Supervisor, or that any allegations of harassment against her were
improperly handled. The record reflects that Complainant was not disciplined but was sent home
when she refused to sign a modified job assignment, or essentially refused to work. Any allegation
by Complainant that management improperly investigated claims of her harassing other employees
are not supported by the record. Nothing in the record indicates that management did anything out
of the ordinary when an allegation of harassment from an employee was received. Both the
Postmaster, and Complainant’s supervisor have no recollection of Complainant being spoken to in
a demeaning manner. Additionally, aside from her assertions, Complainant provided no evidence
that this occurred.

In sum, our review of the record confirms the Agency’s assertion that its decisions were based on
its determination of how best to effectively manage the workplace and its assessment of
Complainant’s performance and conduct in the workplace. Nothing in the record, or submitted on
appeal by Complainant, demonstrate that the actions were in any way motivated by discriminatory
animus. The Commission has long held that an Agency has broad discretion to set policies and
carry out personnel decisions and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997).

Harassment

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore
Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work
environment [is created when] a reasonable person would find [it] hostile or abusive” and the
complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the
circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Id. at 23. An abusive or hostile working
environment exists “when the workplace is permeated with discriminatory intimidation, ridicule
and insult that is sufficiently severe or pervasive to alter the condition of the victim’s employment.”
Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or
group of isolated incidents, will not be regarded as discriminatory harassment.
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Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep’t of Labor, EEOC
Request No. 05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227
(June 10, 1996).

An alteration to an employee’s working conditions exists if a tangible, discrete employment action
is taken, e.g., hiring, firing, transfer, promotion, non-selection, or the Agency’s actions were
sufficiently severe and/or pervasive to create a hostile work environment. The harasser’s conduct
is evaluated from the objective viewpoint of a reasonable person in a complainant’s circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994).

The Agency concluded that Complainant failed to establish a claim of harassment because she
failed to show that that she was subjected to severe or pervasive treatment such as to create an
unlawful work environment on any basis. Instead, the record reflects that the incidents complained
of here either did not occur as alleged by Complainant or appear to have been reasonable actions
of Complainant’s supervisor and other management officials taken in the course of discharging
their supervisory responsibilities. The incidents identified and supported by record evidence as
having occurred, were in the nature of common interactions and employment actions that would
occur between a supervisor and a subordinate employee in the workplace. We agree with the
Agency’s findings in the FAD that the incidents, considered together and taken as a whole, do not
rise to the level of a discriminatorily hostile workplace.

CONCLUSION

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 decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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.
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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.

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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

September 17, 2019
Date