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

Equal Employment Opportunity Commission

Dec 13, 2018

0120172807 (E.E.O.C. Dec. 13, 2018)

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

Kazuko M.,1
Complainant,

v.

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

Appeal No. 0120172807

Agency No. 1F-901-0160-16

DECISION

On August 11, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency
final decision, dated July 6, 2017, 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., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the relevant time, Complainant worked as a Distribution Clerk at the Agency’s Los
Angeles Processing and Distribution Center in Los Angeles, California.

In early August 2016, Complainant had a procedure to remove several varicose veins. When she
returned to work, on August 15, 2016, she submitted a doctor’s note that stated she could not
stand for three weeks. For the first three days, Complainant keyed mail. Thereafter, she was
told that the doctor’s note was insufficient. Complainant obtained another note, with more
details.

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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Complainant could stand for fifteen minutes every two hours, no pulling or bending, and a lifting
restriction of five to ten pounds. These restrictions were to be in place until September 5, 2016.
Complainant was directed to the Light Duty Coordinator (African American). Thereafter, in
correspondence dated August 24, 2016, the Manager, District Operations (Asian), denied
Complainant’s request for Light Duty.

Believing that the denial was discriminatory, Complainant contacted an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful. On January 3, 2017, Complainant
filed a formal complaint based on race (African-American), color (coffee with cream), national
origin (Africa), and disability (Multiple Sclerosis/varicose veins).2

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). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to establish a prima facie case. With respect to
the basis of disability, the Agency noted that while Complainant stated she was diagnosed with
MS in 1989, she answered all disability-related questions in conjunction with her varicose vein
procedure. When asked how she is limited in her personal life by her condition, Complainant
explained that she does not wear shorts. Consequently, the Agency concluded that Complainant
failed to show that either of her condition substantially limits a major life activity. Even
assuming that Complainant was an individual with a disability, the Agency found no evidence
that the denial of Light Duty was related to her MS or varicose veins.

As for the remaining bases, the Agency also found that Complainant did not show a prima facie
case. Specifically, Complainant failed to identify a similarly situated individual outside of her
protected bases who was treated more favorably. Even assuming that a prima facie case was
established, the Agency found that management articulated a legitimate reason for denying
Complainant Light Duty. Specifically, management witnesses stated there were already several
employees in the area that Complainant wanted to work and there was no additional Light Duty
work available within her restrictions at that time. Complainant attempted to show pretext by
arguing that they let an Asian employee, Rose, work on the bundle sorter for nine month when
she injured her foot. However, management officials attested that they were unaware of such an
employee. The Agency concluded that Complainant was unable to show that management’s
reason was pretextual. According to the Agency, Complainant failed to prove she was subjected
to discrimination as alleged when she was denied Light Duty.

Complainant filed the instant appeal.

2 Complainant also raised the basis of age. But, as noted by the Agency in its decision, she later
attested that she did not believe that her age was a factor. Complainant does not raise the basis on
appeal. Therefore, like the Agency, we shall not consider age discrimination in our analysis.
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ANALYSIS AND FINDINGS

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”).

Disparate Treatment

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 in this case, however, since 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).

Here, management denied Complainant Light Duty because there was no available work within
her restrictions (lifting between 5 and 10 lbs., limited standing, no bending) at that time. The
burden now shifts to Complainant, to show that the Agency’s stated reason is merely a pretext
for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996).
While Complainant references an Asian employee with a foot injury that was provided with
Light Duty for several months, she has not shown that the Agency’s proffered reason – that there
was no current work available within her medical restrictions – was pretext to mask
discriminatory animus.

Therefore, we find that the Agency’s decision, finding no discrimination, was proper.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we hereby AFFIRM the Agency’s decision.

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).
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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:

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December 13, 2018
Date