Nila S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

0120181596 (E.E.O.C. Sep. 27, 2019)

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

Nila S.,1
Complainant,

v.

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

Appeal No. 0120181596

Hearing No. 532-2017-00064X

Agency No. 4C440016015

DECISION

On April 14, 2018, 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
March 13, 2018 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 City Carrier at the
Fairlawn Branch of the Akron, Ohio Post Office. Complainant’s work schedule was 7:30 a.m. to
4:00 p.m., with rotating days off. Complainant experiences complications related to depression
and anxiety. Complainant stated that she can perform all aspects of her position and that her only
restriction is that she be limited to an eight-hour workday. Complainant stated that she requested
reasonable accommodation verbally in February 2015, and in writing in March 2015.

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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On June 3, 2015, Complainant attended a District Reasonable Accommodation Committee
(DRAC) meeting. During the meeting, Complainant claimed that DRAC members made several
degrading statements. For example, Complainant alleged that the DRAC Chairperson stated
“Where is your most recent doctor slip. Can’t you read?” and “You can walk though, right?”
Complainant claimed that she was “crying hysterically while being ripped apart by five rude and
uncompassionate people.” Following the DRAC meeting, Complainant claimed that she was
forced by management to work beyond her eight-hour workday restrictions on several occasions
and was told not to call in to the office for assistance.

On August 26, 2015, Complainant alleged that union officials told her that she had been accused
of tampering with her GPS. Complainant further stated that she was told “you go off the radar, be
careful” and that she should be prepared to call the police. Complainant noted that these comments
were not made directly to her by management, but that she took them as a threat.

On September 2, 2015, Complainant alleged that she was instructed by the Acting Customer
Services Supervisor (AS-2) that there was no mail, that she was to work eight hours, and that
Complainant should not call as there were no excuses. Complainant claimed that AS-2 mentioned
her medical condition on the workroom floor and embarrassed her. Complainant stated that AS-2
yelled all the time and that her requests for assistance were denied.

In her March 2015 reasonable accommodation request, Complainant specifically requested to
work only an eight-hour workday so that she could make her therapy sessions. Complainant
claimed that her doctor faxed in a copy of the request to the Health Unit. Complainant alleged that
her request was verbally denied on August 20, 2015 by the Occupational Health Nurse
Administrator (OHNA), and she received a September 30, 2015 decision letter denying the request.

On October 8, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Caucasian), sex (female), disability (anxiety and depression), age
(48), and in reprisal for prior protected EEO activity when:

1. Complainant attended a meeting with the District Reasonable Accommodation
Committee (DRAC) and they degraded her;

2. On June 3, 2015, and other dates, Complainant was forced to work outside her
medical restrictions;

3. Complainant was informed that the Manager Customer Services (MCS) accused
Complainant of tampering with her GPS;

4. A supervisor degraded Complainant several times on the workroom floor; and

5. Complainant's request for reasonable accommodation, made on or around March
27, 2015, was denied.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

In the decision, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and found that management had articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, with regard to claim (2), MCS stated that Complainant was not on the
overtime desired list; therefore, when her route was more than eight hours of work, he reduced the
workload and reassigned that portion of the route to ensure she would not work over eight hours.
MCS affirmed that he did that for all employees who were not on the overtime desired list. MCS
noted that, nonetheless, Complainant would extend her street time. MCS denied that Complainant
was required to work outside her medical restrictions or work more than eight hours a day. The
Acting Customer Services Supervisor (AS-1) confirmed that she advised Complainant that she
could call in or bring mail back to the station if she was going over eight hours and she would
arrange for its delivery. AS-1 denied requiring Complainant to work outside her restrictions.
Another Acting Supervisor (AS-2) added that she always provided assistance on Complainant’s
route when she needed it and Complainant was not required to work more than eight hours.

As to claim (5), the record evidence showed that the DRAC denied Complainant’s request for
reasonable accommodation. The DRAC Chairperson stated that Complainant’s request that she
needed an eight-hour workday was denied because Complainant indicated to the committee that
she did not have any condition that significantly hindered her ability to perform the required duties
of a letter carrier. Further, Complainant informed the DRAC that she had no physical restrictions
and she did not believe that she should have to use her scheduled days off to attend doctor’s
appointments. The Occupational Health Nurse Administrator (OHNA) affirmed that he received
Complainant’s documentation requesting an eight-hour workday. OHNA stated that the form was
prepared in 2014; therefore, they requested an update. OHNA asserted that Complainant’s request
was ultimately denied because she had scheduled days off to go to therapy. OHNA further noted
that Complainant could use Family Medical Leave Act (FMLA)-protected or other leave.

Regarding Complainant’s harassment claim, the Agency determined that the comments alleged in
claims (1), (3), and (5) were insufficiently severe or pervasive to establish a hostile work
environment. Further, there was no evidence that the comments were motivated by discriminatory
animus. More specifically, as to claim (1), the DRAC Chairperson and other DRAC members
denied making or witnessing any degrading comments. With respect to claim (3), MCS denied
ever accusing Complainant of tampering with her GPS. One of the identified union officials (U1)
stated that he told Complainant that her street time was being watched, not that MCS had accused
her of tampering with her GPS. Finally, AS-2 denied degrading Complainant or discussing her
medical condition on the workroom floor.

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The Agency concluded that Complainant failed to show that management’s reasons for its actions
were pretextual. As a result, the Agency found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s reasons for denying her reasonable
accommodation request were wrong and that it should have been granted. Complainant argues
that even if she could perform the duties of her position without an accommodation, she was still
entitled to one to attend treatment. Complainant claims that her rotating schedule prevented her
from scheduling regular therapy sessions. 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”).

Harassment (Claims 1, 3, and 4)

It is well-settled that harassment based on an individual's statutorily protected bases is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
harassment, Complainant must show that: (1) she belongs to the statutorily protected classes or
engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her
membership in those classes or her prior EEO activity; (3) the harassment complained of was based
on those classes or that 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 Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982).

Therefore, to prove her harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of her protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

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Here, Complainant asserted that based on her protected classes, she was subjected to a hostile work
environment. In this case, Complainant identifies certain instructions and questions directed at her
by the attendees at a District Reasonable Accommodation Committee meeting as evidence of
hostile workplace harassment (Claim 1). These include the following:

Where is your most recent doctor slip?
Can't you read?
Why doesn't your union help?"
Bid off your route."
Follow your supervisor around and demand her signature on a 3996.
You can walk though, right?

ROI at 171.

In addition, Complainant alleges that a supervisor falsely accused her of tampering with the
Complainant’s GPS equipment (Claim 3) and that another supervisor “degraded” her by
instructing her to work no more than 8 hours per day (Claim 4).

To prevail on these claims, Complainant must prove that the allegedly harassing conduct was
undertaken because of a protected basis - in this case because of her race, sex, disability, age, or
in reprisal for prior protected activity. Here, there is no corroborating evidence that the comments
were made. DRAC attendees all denied that Complainant was ever subjected to degrading
comments. Further, MCS denied ever accusing Complainant of tampering with GPS equipment
and U1 expressly stated that he was referring to Complainant’s street time in his comment. Finally,
AS-2 denied degrading Complainant on the workroom floor or discussing Complainant’s
condition. AS-2 denied any knowledge of Complainant’s condition.

The Commission finds that Complainant has not shown that she was subjected to conduct
sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming
that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment,
Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory
animus. As a result, the Commission finds that Complainant has not established that she was
subjected to a discriminatory or retaliatory hostile work environment as alleged.
Denial of Reasonable Accommodation (Claims 2 and 5)

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. In order to establish that Complainant was denied a 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. See EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002).
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Complainant maintains that she was subject to doctor-imposed medical restrictions limiting her to
working no more than eight hours per day, i.e., to be exempt from mandatory overtime, and asserts
two claims based on the Agency’s failure to observe those restrictions. First, in Claim 2, she
asserts that on June 3, 2015 and other unspecified days, she was required to work more than eight
hours per day. Second, in Claim 5, she alleges that she was improperly denied the reasonable
accommodation of “eight-hour work days.”
Complainant submitted a written request for a reasonable accommodation to the Agency in March
2015. ROI, Ex. 3. The request stated her condition was anxiety and she was requesting eight-hour
workdays “due to her diagnosis.” Complainant did not submit any supporting medical
documentation until September 11, 2015. The Commission has held that an employer may ask an
individual for reasonable documentation about that person's disability and functional limitations
when the disability or need for accommodation is not obvious. EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC No. 915.002 (Oct. 17, 2002) at 12-13. If an individual's disability or need for reasonable
accommodation is not obvious, and the person refuses to provide the reasonable documentation
requested by the employer, then the individual is not entitled to reasonable accommodation.
Hunter v. Soc. Sec. Admin., EEOC Appeal No. 0720070053 (Feb. 16, 2012).
Furthermore, management officials affirmed that since Complainant was not on the overtime
desired list, she was not ever required to work more than eight hours. MCS affirmed that he
ensured Complainant’s route was adjusted so that she did not work beyond eight hours; however,
Complainant still extended her street time delivering the mail. ROI, at 263. AS-1 and AS-2 both
affirmed that they provided Complainant assistance whenever she requested, but that she had
enough time to have completed her route in eight hours. ROI, at 287, 304. AS-2 noted that
Complainant failed to call in and request assistance if she ran over time on several occasions. ROI,
at 304. Thus, the record indicates that no management official required Complainant to work
beyond her eight-hour restriction.
Claim 5 is similarly based on the Agency’s failure to afford Complainant the requested
accommodation of eight-hour workdays. Complainant sought the maximum 8 hours per day
schedule because it would facilitate her making doctors’ appointments. ROI, at 230. According
to the Agency, it ultimately denied the requested accommodation because it was not related to any
“[c]ondition that hindered her ability to perform the core function of her job” and because she was
free to go to doctors’ appointments after work or on her scheduled days off. ROI, at 370. Here,
the only explanation Complainant provided is that she preferred not to use her scheduled days off
for medical appointments. OHNA noted that Complainant could use her available leave or FMLA-
protected leave to attend appointments. We note that permitting the use of leave is a form of
reasonable accommodation when necessitated by an employee's disability. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, No. 915.002, Types of Reasonable Accommodations Related to Job
Performance - Leave (Oct. 17, 2002).

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Complainant is not entitled to the accommodation of her choice if another accommodation would
also be effective. See e.g., Casteneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (1994)
(stating complainants are not necessarily entitled to the accommodation of their choice, but to a
reasonable accommodation). Here, Complainant has not presented arguments or evidence
showing that scheduling appointments on her scheduled days off or taking leave would not have
been effective. Accordingly, we conclude there is no evidence supporting Complainant's claim
that she was denied reasonable accommodation in violation of the Rehabilitation Act.
Improper Disclosure of Confidential Medical Information
Finally, with regard to claim (4), the Commission notes that the Rehabilitation Act provides that
information obtained regarding the medical condition or history of any employee shall be treated
as a confidential medical record and there are only limited exceptions to this regulation. 29 C.F.R.
§ 1630.14. By its terms, this requirement applies to confidential medical information obtained
from “any employee,” and is not limited to individuals with disabilities. Hampton v. U.S. Postal
Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000).
Here, there is simply no evidence establishing that any improper disclosure ever occurred. As
discussed above AS-2 denied discussing Complainant’s condition on the workroom floor and
denied any knowledge of Complainant’s condition. Complainant presented no corroborating
evidence that any improper disclosure occurred. Accordingly, the Commission finds that no
Agency officials unlawfully discloses any confidential medical information.

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.
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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.

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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

September 27, 2019
Date