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

Equal Employment Opportunity Commission

Nov 17, 2017

0120152207 (E.E.O.C. Nov. 17, 2017)

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

Melissia M.,1
Complainant,

v.

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

Appeal No. 0120152207

Agency No. 4E-840-0028-14

DECISION

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 April 13, 2016, 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 Mail Processing
Clerk at the Agency’s facility in Provo, Utah. On August 13, 2014, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of her sex (female),
disability, age (53), and in reprisal for prior protected EEO activity when:

1. on April 7, 2014, the District Reasonable Accommodation Committee (DRAC)
denied her request for a reasonable accommodation;
2. on June 17, 2014, management issued her a notice of 14-day suspension;

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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3. on August 11, 2014, management gave her an investigative interview;
4. on various dates, including July 3 and October 8, 2014, management gave her
investigative interviews; and
5. on or about October 7, 2014, management accused her of harassing a coworker and
instructed her not to speak with her coworkers.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 decision concluded that Complainant failed to
prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant
reiterates her contention that she was denied a reasonable accommodation and that the Agency
subjected her to harassment.

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”).

Initially, with respect to claim (1), 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. To establish a denial of reasonable accommodation,
Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R.
§1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m):
and (3) the Agency failed to provide a reasonable accommodation. The Commission will assume
without deciding (for the purposes of this decision) that Complainant is a qualified individual
with a disability.

2 In her formal complaint, Complainant also alleged on October 8, 2014, management did not
allow her to have a union representative present at an investigative interview. The Agency
dismissed this claim, pursuant to 29 C.F.R. § 1614.107(a)(1), for lodging a collateral attack on
the collective bargaining agreement. On appeal, Complainant has not contested this dismissal
and we affirm the Agency’s dismissal.
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Upon review, the Commission finds that the Agency did not deny Complainant a reasonable
accommodation. The record shows that Complainant was diagnosed with total knee arthroplasty
of both knees on January 22, 2008. Complainant provided the Agency with medical
documentation in February 2009, and filed a claim with the Office of Workers’ Compensation
Programs (OWCP). The record shows that as a result of her OWCP claim, Complainant was
given several reassignment offers commensurate with her medical restrictions. On February 24,
2014, Complainant was given a reassignment offer to the position of Mail Processing Clerk. The
offer stated that the position “has been tailored to meet your physical needs at this time” which
were identified as working only 5 days per week, avoiding slippery/snow covered surfaces, no
kneeling, intermittent bending 1-2 hours per day, intermittent stooping 1-2 hours per day, and
intermittent twisting 1-2 hours per day. The record shows that Complainant accepted the position
on March 10, 2014, “under protest” as she wished to remain in the maintenance craft. The record
also shows that the Agency’s DRAC met with Complainant on April 3, 2014, at which time
Complainant requested the accommodation of being returned to her prior position in the
maintenance craft. The occupational health nurse administrator states that the committee
determined that the accommodation requested by Complainant would not be effective as
Complainant could not perform the essential functions of that position, and she had accepted the
offer of the mail processing clerk position which was within her work restrictions. Accordingly,
the DRAC denied Complainant’s request on April 7, 2014.

The Commission finds that Complainant has not established that the Agency failed to provide
her with a reasonable accommodation. The Commission notes that a protected individual is
entitled to a reasonable accommodation; she is not necessarily entitled to the accommodation of
choice. See Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (Feb. 17, 1994). The
employer may choose among reasonable accommodations so long as the chosen accommodation
is effective. U.S. Airways v. Barnett, 533 U.S. 391, 400 (2002). Here, although it is clear that
Complainant wished to remain in her prior position in the maintenance craft, she has presented
no evidence to show that the provided accommodations were ineffective or that the duties of the
mail processing clerk position were not commensurate with her medical restrictions.
Accordingly, the Commission finds that Complainant failed to prove that the Agency denied her
reasonable accommodation in violation of the Rehabilitation Act.

Next, 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
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. 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, non-
discriminatory reason for its actions. Texas Department of Community 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 Products,
Inc., 530 U.S. 133 (2000).

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Here, we find that assuming, arguendo, Complainant established a prima facie case of sex, age,
disability, and reprisal discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. With respect to claim (2), the record shows that
Complainant was issued a 14-day suspension on June 17, 2014, for failure to follow instructions.
Specifically, the plant manager (M1) stated that Complainant had been repeatedly instructed to
enter the facility only through an authorized employee entrance, but that on the date at issue, she
was seen entering the building through the business mail entry unit. M1 also states that a 14-day
suspension was appropriate as it was the next step in progressive discipline. The record shows
that Complainant was previously issued a letter of warning for unsatisfactory performance, a
letter of warning for failure to follow instructions, and two suspensions for failure to follow
instructions that were still in her file at the time she was given the 14-day suspension at issue.
We find that Complainant failed to show that the Agency’s articulated reasons for the suspension
were a pretext for unlawful discrimination.

As to claims (3) and (4), the record shows that Complainant signed for a certified letter on June
15, 2014, at a time management believed was not on her lunch or an authorized break, and that
management conducted an investigative interview regarding the incident. Further, the
Supervisor, Maintenance Operations (S1), states that on June 5, 2014, he approached
Complainant to provide her with documents she had requested when she “became
argumentative” and “called [him] an asshole.” S1 also states that the following week they had a
similar exchange, at which point Complainant “called [him] a jerk.” S1 states that as a result of
this inappropriate behavior, he performed an investigative interview. Additionally, M1 states that
he gave Complainant an investigative interview after suspecting that Complainant had once
again failed to enter the facility through an authorized entrance on July 15, 2014. The record
shows that following the investigative interviews for these alleged incidents, management
determined that discipline was not warranted. We find that Complainant has not shown that the
Agency’s actions were motivated by discriminatory or retaliatory animus. As to claim (5), M1
states that a maintenance employee filed a harassment claim with him regarding Complainant’s
conduct, claiming that Complainant constantly badgered him and that she “cornered him near the
break room.” In response to this allegation, M1 states that he instructed Complainant not to
speak to the alleged victim until an internal investigation could be completed. We find that
Complainant has not shown that the Agency’s actions were motivated by discriminatory or
retaliatory animus.

Finally, insofar as Complainant contends that the incidents alleged constitute a hostile work
environment based upon any of her protected classes, the Commission finds that since she failed
to refute the legitimate, nondiscriminatory reasons proffered by the Agency for its actions, she
also failed to establish that such actions were taken on the basis of her membership in the
protected classes. Accordingly, Complainant failed to establish that she was subjected to a
discriminatory hostile work environment. See Bennett v. Department of the Navy, EEOC
Request No. 05980746 (September 19, 2000).

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CONCLUSION

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. 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

November 17, 2017
Date