0120151451
07-26-2017
Oda H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Oda H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120151451
Hearing No. 490-2010-00018X
Agency No. 1H-372-0003-09
DECISION
On March 22, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 17, 2015, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether Complainant proved discrimination, by preponderant evidence, based on race (African-American), color (black), sex (female), religion (Christianity), and disability (aggravated chronic sinusitis and allergic rhinitis) when she was denied a disability accommodation from January 3, 2008 and on-going.
BACKGROUND
During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency's Processing and Distribution Center (P&DC) facility in Chattanooga, Tennessee. On July 2, 2009, Complainant filed an EEO complaint alleging discrimination as was identified above. The Agency accepted the complaint for investigation.
After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge, or alternatively an immediate decision from the Agency based on the ROI. 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), concluding that Complainant failed to prove discrimination as alleged. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency did not take proper steps to find her a reasonable accommodation but instead provided her an accommodation (i.e., dust masks) knowing them to be ineffective. Complainant further argues that the Agency did not convene a District Reasonable Accommodation Committee (DRAC) to consider whether job relocation or restructuring would have been an effective accommodation.
In pertinent part, the Agency requests that we affirm its conclusion that Complainant failed to prove discrimination as alleged.
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").
ANALYSIS AND FINDINGS
Contentions on Appeal
On appeal, both parties essentially rely on the information contained in the ROI and/or the conclusions drawn in the Agency's final order. Therefore, their contentions on appeal are considered and subsumed in the remaining parts of this decision below.
Race, Color, Sex, and Religion Discrimination
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume, without so finding, Complainant has established prima facie cases of race, color, sex, and religion discrimination.
We now look to whether the Agency has met its burden to provide legitimate, nondiscriminatory reasons for its action. The Agency stated that Complainant was not provided a modification or change to her work situation because she failed to respond to the Agency's repeated request for additional medical information. See RO1, Affidavit (Aff.) F, 66-67. We find the Agency stated reason to be legitimate and nondiscriminatory.
Complainant must now present evidence showing that the Agency's stated reasons are pretexts based on her race, color, sex, and religion. Complainant presented no evidence, other than her own belief, to demonstrate that Complainant's membership in the named protected classes was a factor regarding the Agency action at issue. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant has failed to prove that the Agency action was pretextual.
Disability Accommodation
The Agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. �� 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dept. of Agriculture, EEOC Appeal No. 0120120400 (Dec. 3, 2015).
A qualified individual with a disability is an "individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m). We will assume for purposes of analysis that Complainant is a qualified individual with a disability.
Agencies are required to engage in an interactive process with employees regarding reasonable accommodations, and employees who refuse to cooperate in that process are not entitled to an accommodation. See Carleen L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120151465 (May 12, 2017), citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, Question 6 (Oct. 17, 2002) (If an employee refuses to provide the documentation requested by the employer, then she is not entitled to reasonable accommodation).
The record reveals that Complainant's duties as a Mail Processing Clerk required her to work in dusty spaces, which aggravated her medical conditions. Once the Agency was placed on notice of Complainant's conditions, namely, aggravated chronic sinusitis and allergic rhinitis, it provided Complainant with dust masks to alleviate the effects the dust had on her conditions. According to Complainant, the dust masks proved ineffective so she requested to be reassigned into a customer service position. Several management officials indicated that the only accommodation Complainant wanted was to be reassigned to Customer Services. See ROI, Affs. B, at 3-4; Aff. D, at 4, q.24. According to the Agency, Complainant was not allowed to move into a customer service position because she would not respond to the Agency's requests to begin the interactive process. See ROI, Aff. B, at 3-4; see also Aff. E, at 3, q.14.
Here, Complainant's apparent lack of cooperation stems not only from refusing to provide supporting documents specifically describing her condition but from refusing to engage in the function that is central to the whole accommodation process, specifically, the interactive process. Moreover, in requesting reassignment as a reasonable accommodation, Complainant sought an accommodation of last resort that should only be utilized after a determination has been made that there are no other accommodations that would enable her to perform the essential function of her current position without imposing an undue hardship upon the Agency. Zachary K. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015).
There are no indications in the evidentiary record that Complainant had sought any type of reasonable accommodation other than reassignment. In view of this, we find that the Agency did not violate the Rehabilitation Act by first requiring Complainant to engage in the interactive process before approving her request for a reassignment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant did not establish race, color, sex, age, and disability discrimination when she was denied a reasonable accommodation from January 3, 2008 and on-going. Accordingly, the Agency's final order is hereby AFFIRMED.
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
_7/26/17_________________
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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0120151451