Alda F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 7, 2019

0120181354 (E.E.O.C. Aug. 7, 2019)

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

Alda F.,1
Complainant,

v.

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

Appeal No. 0120181354

Agency No. 4F-913-0093-16

DECISION

On March 9, 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
February 7, 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

As of January 24, 2015, Complainant worked as a City Carrier Assistant (CCA) at an Agency
facility in Arcadia, California. Complainant stated that she prepared mail for delivery and then
delivered it, walking eight to ten miles per day with a mail satchel. Complainant stated, between
November 2015 and May 2016, she worked six to seven days per week. Complainant stated, in
January 2016, she began having pain in her right foot and a doctor diagnosed her with
Tendonitis. Complainant stated, in April 2016, she had pain in both feet and a doctor diagnosed
her with Bilateral Plantar Fasciitis. Complainant stated that she continued to work after both
diagnoses due to management orders.

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 July 19, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of disability (Bilateral Plantar Fasciitis) and reprisal for prior protected
EEO activity (initial EEO contact for instant complaint) when:

1. since May 2016 and ongoing, management made Complainant work
outside of her medical restrictions,
2. on May 18, 2016, management refused to accept medical documentation
for Complainant from her sister,
3. beginning July 5, 2016, management denied Complainant work, and
4. effective August 15, 2016, management removed Complainant from
Agency employment.2

The Agency accepted Complainant’s complaint for EEO investigation.

During the investigation, Complainant stated that she cannot walk excessively or stand more than
30 minutes. She stated that she can drive deliveries or stop and rest as she needs to address pain.
Complainant stated, on May 22, 2016, management sent her to another facility, Tujunga Post
Office, and the supervisor made her work outside of her restrictions by delivering a route with
excessive walking and standing. Complainant stated May 23, 2016 was the last day she worked.
Complainant stated that she wanted to return to work with accommodation. Complainant stated
that she did not receive a request for medical documentation from the Agency and it refused to
accept the documentation she submitted.

An Arcadia Customer Service Supervisor (S1) stated, on May 31, 2016, a window clerk gave
him documents that Complainant’s sister (CS) left at the post office. S1 stated that the document
authorized Complainant’s return to work but did not provide any restrictions for her work. S1
stated, on April 29, 2016, he issued Complainant a Letter of Warning (LOW) for failure to be
regular in attendance between December 2015 and April 9, 2016. He stated that Complainant
informed him that she was absent because her mother was ill, and he provided her information
on appropriate leave protocol and Family and Medical Leave Act (FMLA) policies. S1 stated
that Complainant has been in Absent without Leave (AWOL) status and has not responded to
two inquires requesting acceptable documentation for her absences. S1 stated that he is not
aware of management refusing documentation from CS. S1 stated that management removed
Complainant because she did not report to work as scheduled and failed to provide acceptable
documentation for her absences. S1 also stated that management scheduled a fact-finding
conference for June 23, 2016 and Complainant failed to follow instructions or attend. S1 stated
that Complainant was not denied work, but she failed to report for work.

A Sunland, California Customer Service Supervisor (S2) stated, when Complainant, was
assigned to her facility for two days, she gave her a “mounted” route as Complainant’s manager

2 Complainant alleged reprisal as to incidents (3) and (4) only, based on initial EEO contact on
June 23, 2016 for incidents (1) and (2).
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requested. A mounted route includes driven deliveries. S2 stated that Complainant did not
return after the second day assigned to Sunland.

The Arcadia Postmaster (PM) stated, in July 2016, he received an Office of Workers’
Compensation Program claim form stating that Complainant needed to restrict “on feet” time. In
addition, PM stated, in early June 2016, he received a medical form excusing Complainant from
work May 23 – 30, 2016. PM stated that management assigned her work consistent with her
restrictions. PM stated that Complainant has an attendance problem and has not followed the
rules and policies regarding attendance. PM stated that Complainant did not request
accommodation and that the Agency assigned Complainant work consistent with the medical
documentation she provided. PM stated that Complainant’s medical documentation did not
contain all of the information required to be deemed acceptable. PM stated, “Medical
documentation is refused when [it] does not give an explanation of the nature of the employee’s
illness or injury sufficient to indicate to management that the employee was or will be unable to
perform his or her normal duties for the period of absence.”

In pertinent part, the investigative record contains the documents that follow.

▪ Letter of Warning dated November 24, 2015, charging “Failure to Follow
Instructions/Failure to be regular in attendance” for unscheduled absences on
October 28 and November 14, 2015.

▪ Fact-Finding Interview memorandum dated April 11, 2016, regarding failure to
maintain attendance between December 2, 2015 and April 9, 2016.

▪ Handwritten response dated May 9, 2016 from Complainant. Complainant
stated that December and January were hectic because of the holidays and it was
difficult for CCAs to get an off day. Complainant stated, during February 2016,
her mother was ill and she let management know but they instructed her to come
into work. Complainant stated, in March 2016, she submitted a leave request for
two days, which was approved, but management later stated that it did not have
any approved requests for her. Complainant stated, in April, she had a medical
appointment so called in and, another day, medications made her drowsy and she
knew she could not perform well at work.

▪ Note from an Emergency Room Provider at St. Vincent Medical Center asking
that Complainant be excused from work between May 23, 2016 and May 30,
2016. The note is date-stamped May 24, 2016 - Arcadia Post Office.

▪ A Return to School/Work slip stating that Complainant was seen for illness or
injury on May 29, 2016 and can return to work in a week. The slip is labeled as
received at the post office on May 31, 2016 at 10:58 a.m.

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▪ Notice to Submit Medical Documentation dated May 31, 2016, requesting
documentation to substantiate Complainant’s continued absence. A
corresponding Product Tracking report indicated that the Notice was delivered to
an individual at Complainant’s address of record on June 1, 2016 at 11:37:00.

▪ FMLA Medical Certification dated June 1, 2016, indicating “Bilateral Plantar
Fasciitis” with a probable duration of six weeks and recommending “needs
reduced ‘on feet’ time.”

▪ Notice to submit medical documentation – Fact Finding dated June 18, 2016,
requesting acceptable medical documentation from Complainant and informing
her of fact-finding on June 23, 2016. A Product Tracking report indicated that the
Notice was delivered to an individual at Complainant’s address of record on June
21, 2016 at 13:56:37.

▪ Notice of Removal dated August 8, 2016, charging “Unacceptable Attendance”
and “Failure to Follow Instructions.” The Notice stated that Complainant failed
to provide acceptable documentation to support her absences or participate in
fact-finding conferences. The Agency stated that Complainant was AWOL since
May 30, 2016.

Following the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant initially requested a hearing but subsequently withdrew her request.
Consequently, 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. The Agency found that Complainant failed to show that she was
substantially limited in a major life activity, and, hence, an individual with a disability. The
Agency found that Complainant failed to show that management treated similarly-situated
individuals outside of her protected classes more favorably or other evidence to establish a
discriminatory motive. The Agency stated that the record does not support Complainant’s
contentions of discrimination.

The instant appeal from Complainant followed. On appeal, Complainant stated that she
submitted medical documentation to support her medical condition, but management continued
to request documentation. Complainant stated that the Agency has a policy of terminating or
failing to accommodate employees with injuries.

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
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“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”).

Reasonable Accommodation

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. 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
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). Under the
Commission’s regulations, an Agency is required to make reasonable accommodation to the
known physical and mental limitations of a qualified individual with a disability unless the
Agency can show that accommodation would case an undue hardship. See 29 C.F.R. §§
1630.2(o) and (p). We shall assume without deciding (for the purposes of this decision) that
Complainant is an individual with a disability.

After careful review of the record, we find that Complainant has not shown that the Agency
wrongfully denied her reasonable accommodation. The record shows that, as of at least May
2016, Complainant had a condition of both feet that caused pain and affected her ability to walk
or stand extended periods of time. The Agency placed her at a facility where she worked for two
days before she stopped reporting. Complainant contended that there was excessive walking or
standing on the route and Agency management stated that Complainant performed mounted
deliveries which includes driving a vehicle primarily for deliveries. The record shows further
that Complainant provided documentation stating that she was ill or had an injury and should not
return to work until June 5, 2016. May 23, 2016 was the last day Complainant worked. The
Agency sent Complainant two notices, one dated May 31, 2016 and the second dated June 18,
2016, requesting acceptable documentation for her absences. The second notice also informed
Complainant of a scheduled fact-finding investigation regarding her absences. The Agency
provided proof of delivery to Complainant’s address of record, but Complainant stated that she
did not receive the Notices. We note that Complainant provided FMLA Medical Certification
dated June 1, 2016, indicating “Bilateral Plantar Fasciitis” with a probable duration of six weeks
and recommending “needs reduced ‘on feet’ time.” The Agency stated that Complainant has an
attendance problem and failed to address it although the Agency contacted her and tried to work
with her about it. The Agency implemented progressive discipline and then removal on August
8, 2016 for “unacceptable attendance” and “failure to follow instructions.” Also, in the record,
Complainant offered other reasons unrelated to her medical condition for her absences. Based on
the circumstances herein, we cannot find the Agency’s actions improper.

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Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she
must first establish a prima facie case 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, non-discriminatory reason for its actions. See 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 a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

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, non-discriminatory 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination
based on disability and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for
attempting to gather information about absences from Complainant and then implementing
progressive discipline that ultimately resulted in removal. We find further that Complainant
failed to show, by a preponderance of the evidence, that the articulated reasons are a pretext for
discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision.

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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.
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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 7, 2019
Date