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

Equal Employment Opportunity Commission

Dec 7, 2018

0120172748 (E.E.O.C. Dec. 7, 2018)

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

Lilian C.,1
Complainant,

v.

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

Appeal No. 0120172748

Agency No. 1F-927-0008-17

DECISION

On August 8, 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
July 7, 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. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Postal Support Employee (PSE) Mail
Processing Clerk at the Agency’s Santa Ana Processing and Distribution Center in Santa Ana,
California.

Believing that she was subjected to discrimination based on her sex (female – pregnancy),
Complainant filed an EEO complaint on February 2, 2017. The Agency framed the claims as
follows:

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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1. on or about June 3, 2016, and continuing, management has refused to
process or submit Complainant’s Office of Worker’s Compensation
(OWCP) injury claim; and,

2. on or about June 3, 2016, and continuing, Complainant was told there was
no work available within her restrictions and sent home.

After an 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).2 The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

The instant appeal followed.

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”).

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).

2 On appeal, Complainant states, “I originally intended to file for the option that allows me to see
a Judge in person and fight for my case in person.” According to Complainant, her first request
was not received by the Agency, so she sent a second request. This time she used a tracking
service, which she contends states the correspondence was received by the Agency on June 26,
2017. Nonetheless, the Agency’s decision was issued days later. Complainant has not provided
any evidence in support of her assertions. The record does not contain a copy of her request or
the tracking information showing receipt by the Agency. Moreover, the record reflects that the
Report of Investigation was transmitted to Complainant on May 1, 2017. Complainant was
informed that a request for a hearing needed to be placed within thirty days of receipt of the
report. Even if Complainant’s assertion was true, her request would be untimely.
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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).

In claim (1), Complainant alleges that the Agency refused to process or submit her OWCP claim.
The Agency’s legitimate, non-discriminatory reason was simply that Complainant never filed an
OWCP claim. Complainant purportedly brought a form to Urgent Care, but was told that the
form she had brought was not the proper form for the clinic to complete, and took no further
action. Complainant acknowledges on appeal that she did not submit a OWCP claim, asserting
she was “given the wrong [form] and my doctor refused to sign it.” Therefore, we find that the
alleged failure to process Complainant’s OWCP claim was not due to the Agency’s
discriminatory inaction, but rather the absence of a claim to process. The Agency’s finding of no
discrimination, regarding claim (1), was proper.

Complainant also alleges, in claim (2), that since June 3, 2016, she was told there was no work
within her restrictions and was sent home. According to the Agency, in late May 2016,
Complainant informed one of her supervisors that she was pregnant. Approximately one week
later, she experienced a “side injury” which caused her to visit Urgent Care. In June 2016,
Complainant submitted documentation for light duty and workers’ compensation. In the note
from her obstetrician, regarding her pregnancy, the obstetrician stated that Complainant could
not lift more than ten pounds or experience prolonged sitting or standing. She was also advised
to take frequent breaks. In contrast, the document from Urgent care, regarding the intermittent
abdominal pain she had experienced for two months which was purportedly cause by the heavy
lifting/pushing/pulling at work, did not include any work restrictions. Instead, Complainant was
advised to take Ibuprofen, use warm compresses, and stretch.

The Agency’s proffered non-discriminatory reasons for not providing Complainant with light
duty was predicated upon her failure to provide updated medical documentation, and the severity
of her restrictions from her obstetrician which precluded her from performing available work.

To show pretext, Complainant argued that she saw other employees working, for example, in the
manual section or as a “stacker 2.” However, Complainant has failed to show a non-pregnant
employee, with similar restrictions and seeking light duty, was provided with work. As such,
Complainant has been unable to establish any nexus between her protected basis and the
Agency’s actions.
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Moreover, on appeal, Complainant describes how PSEs are treated less favorably than regular
employees. While such treatment may be unfair, it is not protected by Title VII and the EEOC
regulations.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, 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).
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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:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 7, 2018
Date