Zelda P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 4, 2020

2019002043 (E.E.O.C. Aug. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zelda P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019002043 Agency No. 4G-752-0148-18 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 November 6, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Postage Due Clerk, PS-07/O, at the Agency’s Dallas Main Office Station in Dallas, Texas. In 2008, Complainant was diagnosed with multiple permanent physical conditions including a bulging cervical left shoulder, carpal tunnel nerve damage, and spinal stenosis. In October 2009, Complainant was provided a rehabilitation modified position in accordance with her restrictions. Complainant’s duties included sorting mail into the case, distributing letters in the case, verifying tray letter mail, and identifying errors on address labels. Complainant claimed that she was not allowed to continue working her modified duty assignment as of February 12, 2018, and that her managers did not give her a reason. 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. 2019002043 2 The Manager, Customer Services (MCS) explained that Complainant was doing a lot of work around the unit that exceeded her limitations. For example, Complainant was doing reshipment work which, at times, had heavy parcels over 35 pounds which would have violated her lifting restriction. Therefore, the Agency could not allow her to continue working her assignment, and parts of her job were reassigned to other employees. In addition, Complainant alleged that her managers refused to give her overtime hours even though she was always on the Overtime Desired List (ODL). Complainant claimed that management did not provide her a reason for denying her overtime. The Supervisor, Customer Services (SCS), Complainant’s first-level supervisor, explained that Complainant did not work overtime because the overtime work that was available exceeded her limitations. Complainant alleged that the Agency sent her a letter in or around March 10, 2018, asking her to provide updated medical documentation. Complainant asserted that she should not be required to provide such documentation because her restrictions were permanent, she was working a permanent modified assignment, and that nothing has changed since 2013. SCS explained that the Agency needed a copy of Complainant’s updated limitations to ensure that the Agency did not work Complainant outside of her restrictions. MCS explained that Complainant told her supervisor that she could not weigh a package of checks that weighed several ounces which alarmed management. Noting that Complainant had not updated her medical documentation in over five years, MCS determined that management needed updated medical documentation. Management asked Complainant to provide updated medical documentation by March 16, 2018. Complainant submitted documentation dated February 15, 2018, indicating that she was restricted from lifting more than 35 pounds. Complainant also could not, among other things, stand more than one hour; sit no more than seven hours; walk no more than two hours; and reach above her shoulder no more than one to two hours per day. On May 11, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (bulging cervical left shoulder; carpal tunnel nerve damage; spinal stenosis), and in reprisal for prior protected EEO activity when: 1. Since February 12, 2018, Complainant has not been allowed to work her modified job assignment; 2. Since February 16, 2018, Complainant was not allowed to work overtime; and 3. On or about March 10, 2018, Complainant received a letter requesting that she provide updated medical documentation. 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). 2019002043 3 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 management subjected her to discrimination as alleged. The instant appeal followed. 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”). Failure to Accommodate An 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. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this decision, we assume that Complainant is an individual with a disability. In this case, Complainant has not shown the Agency failed to accommodate her condition. Complainant accepted a modified duty assignment that fit her restrictions. When management discovered that Complainant may have been performing duties outside of her restrictions, management removed that portion of her duties. With regard to overtime opportunities, the Commission notes that the Agency has an obligation to provide reasonable accommodation for overtime because it is a program the Agency offers to its employees. Gil v. U.S. Postal Serv., EEOC Appeal No. 01990675 (Sept. 14, 2001). Here, however, the Agency explained it could not give Complainant overtime hours because the overtime work available at the time was not within her restrictions. Complainant has provided no evidence that there was overtime work available within her restrictions. Finally, the Agency explained that management requested updated medical documentation to seek clarification on her limitations so it could best accommodate her, and did so once Complainant provided the requested information on her limitations. Complainant has presented no evidence establishing that the provided accommodations were ineffective. Accordingly, the Commission finds that Complainant has not established that the Agency denied her reasonable accommodation in violation of the Rehabilitation Act. 2019002043 4 Disparate Treatment 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 he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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 Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In this complaint, as described above, the Agency articulated legitimate, non-discriminatory reasons for its actions. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden or otherwise contradict the Agency’s articulated reasons. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. 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. 2019002043 5 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. 2019002043 6 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 August 4, 2020 Date