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

Equal Employment Opportunity Commission

Apr 16, 2019

0120180380 (E.E.O.C. Apr. 16, 2019)

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

Kiera H.,1
Complainant,

v.

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

Appeal No. 0120180380

Hearing No. 430-2017-00233X

Agency No. 1K-271-0055-16

DECISION

On November 3, 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
September 29, 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., 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. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full Time Mail
Handler at the Agency’s Greensboro Processing and Distribution Center in Greensboro, North
Carolina.

On October 3, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), color (Light complexion),

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.
0120180380

2
disability (chronic menstruation cramps and migraines), and age (46) when, on August 12, 2016,
Complainant’s request for a change of schedule due to a medical condition was denied.

Complainant explained that she experiences complications from migraines and chronic
menstruation cramps. Complainant stated that she is able to perform all of the duties of her job
unless she has a flare up, which incapacitates her. Complainant averred that her duty hours were
8:30 p.m. to 5:00 a.m., with Sundays and Mondays off. Complainant alleged that on June 7, 2016,
she submitted a schedule change request and medical documentation recommending that she not
work “third shift.” Complainant requested to be placed on Tour 2. Complainant claimed that her
supervisors never offered her a schedule change, but instead directed her to contact the Agency’s
District Reasonable Accommodation Committee (DRAC). Complainant alleged this “was not the
legal [Agency] procedure.”

Complainant completed a form furnished by DRAC on June 20, 2016. On this form, Complainant
explained that she can perform her job duties, but that night shift hours were an issue. Complainant
averred that, “[b]ased on my medical situation/conditions per doctor recommendations that I need
to work morning/daylight hours.” Before she received a decision from DRAC, Complainant was
awarded a bid on Tour 2, with the hours of 7:00 a.m. to 3:30 p.m. Complainant stated that the bid
assignment “was very accommodating to my medical documentation.” Subsequently, on
September 20, 2016, Complainant voluntarily withdrew her request for a reasonable
accommodation.

The Manager, Distribution Operations (MDO) averred that she initially offered Complainant an
alternative to her requested change of schedule, which was to work hours on Tour 3. However,
Complainant rejected the offer and said she could only work on Tour 2. The Senior Manager,
Distribution Operations (SMDO) added that the offer was to work from 6:00 p.m. until 2:30 a.m.

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 requested a hearing but on August 29, 2017, the AJ dismissed the hearing
request on the grounds that Complainant failed to appear at the Initial Conference despite receiving
notice of the conference. The AJ remanded the complaint to the Agency, and the Agency issued
a final decision pursuant to 29 C.F.R. § 1614.110(b).2 The decision concluded that Complainant
failed to prove that management subjected her to discrimination as alleged. The instant appeal
followed.

2 Complainant did not challenge the AJ's dismissal of her hearing request on appeal, and the
Commission can discern no abuse of discretion.
0120180380

3
CONTENTIONS ON APPEAL

Complainant argues that management has no problem changing her coworkers’ schedules but
denied her request. Complainant contends, for the first time on appeal, that she believes
management’s actions toward her were in reprisal for her prior EEO complaints. Further,
Complainant claims that management officials provided false statements. Accordingly,
Complainant requests that the Commission reverse the final decision.

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

To the extent that Complainant is alleging that she was denied reasonable accommodation, the
Commission notes that an agency is required to reasonably accommodate the known limitations
of a qualified individual with a disability, unless it can show that doing so 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). For purposes of this decision, we assume
that Complainant is an individual with a disability.

The Commission further notes that under the Rehabilitation Act, an employee is not required to
use the magic words “reasonable accommodation” when making a request. See Enforcement
Guidance on Reasonable Accommodation, Question 1. Instead, the employee or the employee’s
representative need only inform the agency that he or she needs an adjustment or change at work
for a reason related to a medical condition. See Triplett-Graham v. U.S. Postal Serv., EEOC
Appeal No. 01A44720 (Feb. 24, 2006), req. for recon. den’d, EEOC Request No. 05A60859 (Sep.
19, 2006); see also Geraldine B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120090181
(Oct. 13, 2015).

After receiving a request for reasonable accommodation, the employer should engage in an
informal process with the disabled individual to clarify what the individual needs and identify the
appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement
Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002); see also
Abeijon v. Dep't of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012).
0120180380

4
Protected individuals are entitled to reasonable accommodation, but they are not necessarily
entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No.
01931005 (Feb. 17, 1994).

In this case, Complainant first made the Agency aware of her request for reasonable
accommodation on June 7, 2016, when she sought a change in schedule to Tour 2. Complainant
submitted documentation stating that her doctor recommended that she not work third shift (Tour
1). MDO offered Complainant a change to Tour 3, with hours of 6:00 p.m. to 2:30 a.m. There is
no evidence indicating that this offered alternative conflicted with Complainant’s submitted
medical documentation as Complainant’s doctor simply recommended that she not work Tour 1.
Complainant rejected this offer, and management referred Complainant to the DRAC. While the
DRAC was assessing her medical documentation, Complainant won a bid on Tour 2 and
voluntarily withdrew her accommodation request on September 20, 2016.

We do not agree that MDO’s initial offer of modified hours constituted a refusal to provide
Complainant with reasonable accommodations. Rather, it was an alternative offer that
Complainant did not accept. Complainant presented no evidence demonstrating that this
alternative accommodation would have been ineffective. Thereafter, the Agency continued to
assess Complainant’s request to determine whether it could accommodate her. Complainant
subsequently was awarded a bid on Tour 2 and withdrew her request. Accordingly, we do not find
that the Agency denied Complainant reasonable accommodation in violation of the Rehabilitation
Act.

Disparate Treatment

To the extent that Complainant alleges that she was subjected to disparate treatment (apart from
accommodation), to prevail in a disparate treatment claim, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. 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,
411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. 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 Prods., Inc., 530 U.S.
133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming arguendo that Complainant established a prima facie case of discrimination, the Agency
has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, MDO and
SMDO both explained that they did not deny Complainant a schedule change, but rather referred
her to the DRAC to engage in the interactive process. As discussed above, Complainant was
initially offered an alternative schedule change, which she rejected.
0120180380

5
Then Complainant was subsequently awarded a bid to her desired tour. Both the MDO and SMDO
denied that Complainant’s protected bases were a factor in their actions.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

The Commission finds no persuasive evidence that Complainant's protected classes were a factor
in the Agency's actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons
and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this
burden. As a result, the Commission finds that Complainant has not established that she was
subjected to discrimination as alleged.

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 final 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.
0120180380

6
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

April 16, 2019
Date