0120160826
03-23-2016
Agnus W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Agnus W.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120160826
Agency No. 1J607007915
DECISION
Complainant timely appealed to this Commission from the Agency's December 3, 2015, dismissal of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler (PS-06) at the Chicago Metro Surface Hub Sorting Facility in Elk Grove Village, Illinois.2
On November 27, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability (Bilateral Carpal Tunnel, right shoulder rotator cuff) when:
1. On Thursdays and Fridays, she was made to do more work than a co-worker ("CW");
and
2. Her supervisor ("S1") micro-manages and speaks to her in a confrontational manner.
Complainant began working limited duty based on her disability in February 2014. She has two torn shoulder muscles, previously underwent surgery on both hands for her carpel tunnel, and received injections in her thumbs to treat trigger finger (stenosing tenosynovitis).
Complainant's limited duty responsibilities include printing placards and labels, scanning, and attaching stickers. These tasks require Complainant to use machines in at least three different areas on the workroom floor, and she often works in multiple areas per shift. Two other limited duty employees with similar physical restrictions as Complainant get assigned to one area to work, and start their shifts at 3:00 PM. Complainant, who arrives at 4:00 PM feels overwhelmed because she must start printing the placards even though her two coworkers could have started the same task an hour earlier. On Thursdays and Fridays, Complainant has an especially difficult time because only one other limited duty employee, CW, is on duty. Complainant alleges she must perform the same task, printing and applying placards, continuously without a break for several hours to make up for CW's slower pace. She alleges S1 assigns her a disproportionately large number of tasks compared to her limited duty co-workers, which along with the pressure of coming in an hour later (decreasing time to get the placards printed), causes her hands to "ache every day."
Complainant has met with her second and third line supervisors and her union president a number of times to discuss S1's alleged unfair distribution of work between Complainant and the other limited duty employees. Complainant also requested the same arrival time of 3:00 PM as the other limited duty employees, and voiced the detrimental impact of S1's distribution of assignments in relation to her disability.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Claim 1
We find Claim 1, despite its framing, is not simply challenging S1's work distribution, but also challenging the effectiveness of Complainant's limited duty status as an accommodation for her disability. See US Airways, Inc. v. Barnett, 535 U.S. 122 (2002) (In order to be reasonable, an accommodation must be effective, and whether an accommodation offered is effective is determined under the circumstances of the situation). Under the Rehabilitation Act, an employee is not required to use the "magic" words "reasonable accommodation" when making a request. Instead, the employee or the employee's representative need only inform the Agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. United States Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24. 2006).
Complainant alleges that on Thursdays and Fridays she is placed in a situation where she must do additional work in a manner that aggravates her disability. The record indicates Complainant approached S1, her second and third line supervisors, and her union president suggesting an earlier start time and that others work on the placards as well as a way to decrease the negative impact on her disability. We find this sufficient to indicate Complainant was requesting accommodations and calling into question the reasonableness of her existing accommodation. As such, Complainant has stated a claim.
Claim 2
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
After a thorough review of the record, including detailed background information submitted by Complainant on appeal, we find the allegation that S1 "micro-manages and speaks to her in a confrontational manner" fails to state a claim of a hostile work environment. The actions alleged are common workplace occurrences, and unless it is reasonably established that the actions were somehow abusive or offensive, and were taken in order to harass complainant on the basis of a protected class, such everyday events are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. Goines v. Dep't of Veterans Affairs, EEOC Appeal No. 01A54108 (July 20, 2006); See Wolf v. United States Postal Serv., EEOC Appeal No. 01961559 (July 23, 1998); Long v. Veterans Admin, EEOC Appeal No. 01950169 (Aug. 14, 1997)
We have previously found similar allegations to be "common workplace occurrences," that while unpleasant, did not constitute harassment. Regarding micromanagement, in Gormley v. Dep't of the Interior, we found that a Complainant's allegations that her "work duties and time in and out of the office were closely monitored on a daily basis; and she was treated more harshly and unprofessionally by her supervisor than other employees" were "common workplace occurrences." EEOC Appeal No. 01973328 (Feb. 18, 2000) Further, even if done in a confrontational manner, a supervisor questioning an employee about work duties (e.g. asking an employee why she is in a certain area of the workspace or using a specific printer) is also a "common workplace occurrence." See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000)
Even if S1 spoke to Complainant in a confrontational manner in a context other than a "common workplace occurrence," there is nothing in the record to indicate that S1's action was so severe and pervasive as to rise to the level of harassment. We have consistently found that a few isolated incidents of alleged harassment are usually insufficient to state a claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Serv., EEOC Request No. 0594081 (February 16, 1995).
CONCLUSION
Accordingly, the Agency's final decision dismissing Claim 1 is REVERSED. The Agency's final decision dismissing Claim 2 is AFFIRMED.
Claim 1 is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
The Agency's Report of Compliance (discussed below) must contain: a copy of (1) the Agency's letter of acknowledgment referencing this Decision, the claims to investigate (as stated in the Decision) and Complainant's rights; (2) the transmittal/cover letter with notice of election rights that accompanies Complainant's file; and (3) either the Final Agency Decision ("FAD") in its entirety with appeal rights or Complainant's signed hearing request and the transmittal letter accompanying Complainant's file for a hearing.
IMPLEMENTATION OF THE COMMISSION'S DECISION
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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.
Carlton M. Hadden, Director
Office of Federal Operations
March 23, 2016
__________________
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.
2 The Final Agency Decision erroneously cited her position as "Laborer Custodial (PS-06)."
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