0120110133
09-28-2012
Latonya Brown, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Latonya Brown,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120110133
Agency No. 4C-450-0008-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the August 10, 2010 final Agency decision (FAD) 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at an Agency's Post Office in Cincinnati, Ohio. On September 19, 2009, Complainant presented the Agency medical documentation indicating her restrictions due to an on-the-job injury. As a result, Complainant was placed on limited duty. Complainant's duties included two hours of casing, three hours carrying a route, and rendezvous collections for one or two hours. Management provided Complainant as much work as was available within her restrictions; however, on some days, management could not provide a full eight hours of work. As a result, Complainant was sent home for lack of work on several occasions from November 2009 through February 2010.
In October and November 2009, Complainant claimed that her leave was incorrectly recorded as unscheduled sick leave on several occasions. On these days, Complainant claimed that any time off should have been entered in the system as workers' compensation leave. Additionally, on November 21 and 28, 2009, Complainant claimed that she completed a Form CA-7a workers' compensation form, but her claim was deferred because she needed documents from her supervisor indicating the reason she had to leave work. Complainant alleged that management delayed providing the required letter.
On February 19, 2010, Complainant filed an EEO complaint alleging that she was subjected to discrimination and harassment on the bases of race (African-American), sex (female), disability, and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, she was subjected to information/documentation requests; she was forced to take leave and leave was not recorded correctly in the time and attendance system; she was not provided work at her station; and, management delayed providing a letter regarding the lack of available work to the Office of Workers' Compensation Programs (OWCP).1
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b) on August 10, 2010.
In its FAD, the Agency assumed arguendo that Complainant had established a prima facie case of discrimination on the alleged bases and found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to Complainant's claims regarding documentation for leave, S1 affirmed that Complainant was not scheduled to work October 23-25, 2009, but called in on unscheduled sick leave on October 22, 2009. S1 confirmed that he asked for documentation in support of her sick leave request as he would have of any employee who requested unscheduled sick leave immediately before scheduled annual leave.
In regard to Complainant's allegations that her leave was not properly recorded, the Human Resources Specialist confirmed that Complainant called into the Agency's automated hotline on seven occasions in October and November 2009. The hotline instructs employees to hang up and call their supervisor if the absence is related to an on-the-job injury; however, Complainant did not do so. The HR Specialist informed Complainant that she was entitled to leave buyback as a result of the acceptance of her OWCP claim; however, Complainant did not elect to buy back the leave. As a result, Complainant was charged sick leave for those days pursuant to her requests.
As to the OWCP letter, the HR Specialist stated that Complainant wrote the wrong remarks in the "Reason For Leave" column and it should have stated lack of work, and not that she was under a doctor's care. The HR Specialist affirmed that she informed Complainant that she would not be able to verify that she was sent home due to lack of work and that her manager (M1) would have to confirm. The HR Office received the letter from M1 on December 18, 2009, and it was submitted on December 21, 2009. Complainant received compensation for the dates in question.
The Agency determined that Complainant had presented no evidence that the Agency's reasons for its actions were pretextual. As a result, the Agency determined that Complainant had not been discriminated or retaliated against as alleged.
Regarding Complainant's contention that she was denied reasonable accommodation, management asserted that Complainant notified them about having her impairment on September 19, 2009, when she provided medical documentation. Complainant was then placed in limited duty status due to her doctor's recommended restrictions of minimal walking and standing as well as not being able to perform mounted deliveries. Complainant was provided a modified duty assignment and was given as much work as was available within her restrictions. After all available work was exhausted, Complainant was sent home and charged OWCP leave. Complainant requested, but was not assigned to work on undeliverable bulk business mail (UBBM) because those duties would have violated her restrictions. Further, working the UBBM would not have allowed her to work a full eight hours as those duties take about 30 to 60 minutes a day. As a result, the Agency determined that Complainant had not been denied reasonable accommodation.
Finally, as to Complainant's hostile work environment claim, the Agency determined that Complainant had not shown that the incidents alleged were sufficiently severe or pervasive to rise to the level of discriminatory or retaliatory harassment. Further, Complainant failed to show that the alleged actions were based on her protected classes. As a result, the Agency found that Complainant had not been subjected to a hostile work environment as alleged.
ANALYSIS AND FINDINGS
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Here, Complainant asserted that based on her protected classes, management continuously subjected her to a hostile work environment. However, Complainant has failed to show that any of the alleged incidents were unlawfully motivated by discriminatory or retaliatory animus. Specifically, as to Complainant's claim that she was forced to take leave in October and November 2009, S1 affirmed that management tried to provide Complainant with as much work as possible within her restrictions. ROI, at 232. After all work was exhausted she was sent home and charged OWCP leave. Id.
As to Complainant's claim that her leave was not properly recorded, the HR Specialist stated that Complainant called into the employee unscheduled leave hotline on multiple occasions in October and November 2009. ROI, at 293. The hotline specifically informs employees that if they are calling regarding a job-related injury absence to hang up and contact their supervisor. Id. Complainant did not follow these instructions, and her leave was entered as sick leave for the dates in question. The HR Specialist confirmed that she informed Complainant and M1 that Complainant was entitled to leave buyback; however, Complainant elected to not buy back her leave. Id.
In regard to management's request for leave documentation, S1 affirmed that Complainant was not scheduled to work October 23 through October 25, 2009; however, she called in on unscheduled sick leave on October 22, 2009. ROI, at 229. S1 added that he requested documentation in support of the unscheduled sick leave as he would of any employee who requested sick leave immediately before their pre-approved annual leave. Id. at 229-30.
Regarding her claim that management delayed her OWCP documentation, the HR Specialist affirmed that in December 2009, Complainant wrote the wrong remarks in the "Reason for Leave" column and that it should have stated lack of work and not under doctor's care. ROI, at 289. The HR Specialist informed Complainant that she would not be able to verify if she was sent home due to lack of work and that her Manager would have to do that. Id. OWCP required something in writing in order to change the reason Complainant was off of work. Id. The HR Specialist confirmed that the letter was submitted with the next scheduled CA-7 form, and Complainant received her due compensation. Id.
The Commission finds that Complainant has not shown that any of the Agency's actions were based on discriminatory or retaliatory animus. Accordingly, the Commission finds that the Complainant was not subjected to a hostile work environment as alleged. Further, to the extent that Complainant is alleging disparate treatment with respect to her claims, the Commission finds that she has not shown that the Agency's reasons for its actions were a pretext for discrimination or reprisal. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as alleged.
Denial of Reasonable Accommodation
Finally, to the extent that Complainant is alleging that she was denied reasonable accommodation, under the Commission's regulations, 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). For purposes of analysis, the Commission shall assume, without so finding, that Complainant is a qualified individual with a disability.
The Commission finds that Complainant has not shown that the Agency wrongfully denied her reasonable accommodation. Management provided Complainant with as much work within her restrictions as was available. When there was no work available, the Agency sent Complainant home and charged her OWCP leave. S1 affirmed that the Complainant requested, but was not allowed, to work the UBBM because those duties would have violated her restrictions. Id. at 236. The Commission notes that an employer is not required to create a job for a disabled employee, nor is it required to transform its temporary light or limited-duty assignments into permanent jobs to accommodate an employee's disability. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. U.S. Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement Guidance: Workers Compensation and the ADA, EEOC Notice No. 915.002 at 21 (Sept. 3, 1996). Complainant failed to proffer any evidence showing that there was available work within her medical restrictions on the occasions she was sent home early. Accordingly, the Commission finds that Complainant has not established that she was denied reasonable accommodation in violation of the Rehabilitation Act.
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 (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 28, 2012
Date
1 Complainant raised two additional claims that the Agency dismissed for untimely EEO Counselor contact and for failure to state a claim. Complainant does not challenge those dismissals on appeal; therefore, the Commission declines to address these matters in the instant decision. Additionally, on May 28, 2010, Complainant withdrew an allegation related to being charged absent without leave (AWOL).
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0120110133
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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