0120152460
11-21-2017
Lavonia M,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
Lavonia M,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120152460
Hearing No. 430-2014-00284X
Agency No. 4K-280-0074-13
DECISION
On July 8, 2015, 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 June 10, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency's Post Office facility in Salisbury Post Office.
On September 30, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Sprain of Right Shoulder and Upper Arm) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. From November 29, 2012 and ongoing, Complainant was denied reasonable accommodation and was required to work outside of her medical restrictions;
2. From November 29, 2012 through June 2013, she was harassed and ridiculed when asking for auxiliary assistance;
3. From January 4, 2013 and ongoing, Complainant was subjected to untruthful, retaliatory and vindictive street observations by her supervisor;
4. On various dates in May through June 2013, her FMLA sick leave was incorrectly entered into the time and attendance system as regular sick leave;
5. On or around May 2013 and ongoing she did not accrue the correct amount of earned leave;
6. On June 13, 2013, the Postmaster informed Complainant that she would be taken out of her T-6 position and placed in an unassigned regular position;
7. On or around June and July 2013, the Postmaster required Complainant to obtain additional CA-17s regarding her medical condition;
8. On or around August 2013, she was forced to submit a request for a District Reasonable Accommodation meeting;
9. From December 31, 2013, and ongoing, Complainant has been subjected to co-worker harassment, ridicule, and humiliation which is condoned and encouraged by management; and
10. On January 4 and 6, 2014, Complainant was charged 16 hours of Sick Leave Without Pay instead of FMLA Paid Sick Leave as she had requested.
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 denied the hearing request by decision date May 13, 2015. The AJ dismissed the matter on the grounds that Complainant failed to comply with the AJ's grant of the Agency's Motion to Compel to engage in discovery. Based on Complainant's failure to respond to the AJ's orders, the AJ remanded the complaint to the Agency, and 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 Agency determined that Complainant did not make management aware that she was working outside of her limitations. Supervisor 1 noted that the only limitations she was aware of were related to Complainant's restrictions on lifting less than 30 pounds. Supervisor 2 stated that he was not made aware by Complainant that she was working outside of her restrictions. As to claims (4), (5), (6), (7) and (10) in which Complainant alleged disparate treatment, the Agency found that it provided legitimate non-discriminatory reasons for its actions. The Agency noted that her FMLA usage was not recognized as her FMLA case was closed; she had accrued LWOP resulting in changes in her earned leave; she was not taken out of her T-6 position as alleged; the Postmaster did not recall specifically requesting additional CA-17 forms but noted that Complainant's medical forms were inconsistent and may have sought clarification; and Complainant was charged LWOP because of her negative leave balance. The Agency then held that Complainant failed to prove that the reasons provided were pretext for discrimination. Finally, the Agency turned to Complainant's claim of harassment. The Agency held that Complainant failed to show that the alleged events occurred because of her prior EEO activity and/or her disability. Further, the Agency determined that Complainant did not demonstrate that the events taken as a whole were sufficiently severe or pervasive to create a hostile work environment. Therefore, based on the Agency's review of the record as a whole, it found that Complainant failed to establish that she was subjected to discrimination as alleged based on her disability and/or prior EEO activity.
This appeal followed without specific comment.
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").
Reasonable Accommodation - Claims (1), (6), and (8)
To bring a claim of disability discrimination, complainant must first establish that she is disabled within the meaning of the Rehabilitation Act. An individual with a disability is one who has, has a record of, or is regarded as having a physical or mental impairment that substantially limits one or more of her major life activities. 29 C.F.R. � 1630.2(g). Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Complainant asserted that she suffered an on-the-job injury in the form of a right shoulder sprain and upper arm which is the subject of a claim with the Office of Workers Compensation Programs (OWCP) which was accepted in June 2008. Complainant noted that Supervisor 1 was her supervisor at that time. Complainant noted that her assignment in 2012 required her to drive more than her driving restrictions pursuant to her CA-17 form dated March 20, 2012. She also asserted that she was limited in lifting and carrying for up to 4 hours a day. However, she believed that she was carrying and lifting in excess of this limitation. Complainant also claimed that she was under contract to receive 40 hours per week. The June 4, 2012 offer provided Complainant with only 20 hours of work pursuant to the Collective Bargaining Agreement. Complainant further asserted that she was not permitted to maintain an assignment on the T-7. Complainant contested the Agency's claim that there was "no work available on T-7 string." In addition, she asserted that she was removed from a T-6 assignment but failed to provide any additional information beyond her assertion that she was not provided with 40 hours of work a week.
Complainant then provided a list of dates with assignments. For each date, Complainant stated: "This would have negatively affected complainant's limitations and restrictions relating to driving and carrying her route at her own pace as complainant had to put forth hurried up efforts." Complainant asserted that she was not provided with assistance to meet her deadlines. She believed that this was contrary to her request to carry the route at her own pace. She claimed that her requests for auxiliary assistance were denied. She indicated that she was provided a new assignment on March 13, 2013, but she believed it did not completely accommodate her medical limitations. However, she felt that she needed to agree to the assignment based on the union and the Postmaster stating that the position met her medical restrictions. It was also to be a temporary assignment. Complainant asserted that she was required to put forth a "hurried up effort." Subsequently, March 26, 2013, the Agency provided her with the modified job offer which again Complainant accepted but felt that she would have to put forth a "hurried up effort" in violation of her medical restriction. On May 30, 2013, Complainant was provided with another assignment however she asserted that it was not satisfactory for it did not provide her with 40 hours of work a week.
A review of the record shows that Complainant and management did not have a clear understanding of Complainant's medical limitations. We note that Complainant's medical documentation was not specific beyond "may need extra time to finish route." In addition, Complainant's medical documentation did not connect the need for time to her medical condition. However, based on Supervisor 1's review of Complainant on her route, she determined that Complainant was disorganized which she felt contributed to Complainant's inability to finish her route in the allotted time. Based on the limited information and the review of Complainant's route, management was not clear on medical needs of Complainant's medical condition and the limitation.
In addition, Complainant argued without support that she was entitled to 40 hours of work a week. There is no evidence in the record from which a reasonable fact-finder could conclude that Complainant was entitled to either not having her hours decreased. See Avery v. U.S. Postal Serv., EEOC Appeal No. 01A11934 (July 3, 2002). Based on our review of the record, we conclude that Complainant has not shown that she was denied a reasonable accommodation as alleged in claims (1), (6), and (8).
Disparate Treatment - Claims (4), (5), (6), (7), and (10)
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In claims (4), (5), and (10), Complainant alleged issues pertaining to dates when she was not issued LWOP rather than sick leave or FMLA approved LWOP or that she did not accrue leave. Upon review of the record, there is no indication that Complainant was issued LWOP. Complainant claimed that she did not accrue leave. Management indicated that Complainant had used a lot of FMLA LWOP which would impact her ability to accrue leave in a normal manner. As to claim (6), Complainant claimed that on June 13, 2013, the Postmaster informed Complainant that she would be taken out of her T-6 position and placed in an unassigned regular position. Complainant indicated that the Postmaster indicated that Complainant was being taken out of that position because Complainant was not able to do the position. Finally, on or around June and July 2013, the Postmaster required Complainant to obtain additional CA-17s regarding her medical condition, noting that Complainant had several medical documents with varying limitations. As such, the Postmaster sought clarification of Complainant's limitations. We find that the Agency has articulated legitimate, non-discriminatory reasons for its actions. Further, we hold that Complainant has not shown that the Agency's reasons were pretext for discrimination and/or retaliation.
Request for Medical Documentation - Claim (7)
Complainant alleged that she was subjected to a violation of the Rehabilitation Act when she was asked to provide medical documentation to the Agency. Because the restrictions on employers with regard to disability-related inquiries and medical examinations apply to all employees, and not just to those with disabilities, it is not necessary to inquire, as in this case, whether the employee is a person with a disability. See Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (Enforcement Guidance), No. 915.002, p.3 (July 27, 2000). Instead, we focus on the issue of whether the Agency's health related inquiries and the requirement that Complainant provide updated documentation were lawful. See Alberto v. U.S. Postal Serv., EEOC Appeal Nos. 01993947, 01994592 (Aug. 30, 2002).
The Rehabilitation Act limits an employer's ability to make disability-related inquiries or require medical examinations of employees only if it is job-related and consistent with business necessity. 29 C.F.R. � 1630.14(c). The Commission has addressed this question and has stated that this requirement is met when the employer has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions is impaired by a medical condition; or (2) that an employee poses a direct threat due to a medical condition. See Enforcement Guidance at 15-17.
Here, Complainant alleged that the assignments she was provided by the Agency were not within her limitations. The Postmaster noted that she sought clarification of Complainant's limitations and her medical condition in order to determine the appropriate reasonable accommodation so that Complainant could perform her assignment. Therefore, we find that the Postmaster's request for medical documentation was appropriate.
Harassment - Claims (1) - (10)
It is well-settled that harassment based on an individual's disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she is a qualified individual with a disability covered under the Rehabilitation Act and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). The record clearly showed that Complainant and management had conflicts over the implementation of Complainant's medical limitations and her requests for reasonable accommodation. However, Complainant has not shown it was because of her medical condition and/or prior EEO activity. A fair reading of the record shows that management had conflicts with Complainant and the parties did not communicate with each other well. As such, we cannot find that Complainant was subjected to a hostile work environment in violation of the Rehabilitation Act.
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 finding no discrimination.
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
November 21, 2017
__________________
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.
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0120152460