0120142559
04-01-2016
Alena C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alena C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120142559
Hearing No. 530-2014-00077X
Agency No. 1C-191-0006-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 17, 2014, 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. For the reasons stated below, the Commission affirms the Agency's final decision (FAD) which found that Complainant did not demonstrate that she was subjected to discrimination.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination based on her race when she was not permitted to work.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full Time Mail Processing Clerk at the Agency's Philadelphia P&DC-1 facility in Philadelphia, Pennsylvania. In October 2012, Complainant suffered a work related injury to her foot and was required to wear an orthopedic boot (boot). When the Manager (M1) noticed that Complainant was on the work room floor without a toe guard, Complainant was asked to add one to her boot. After Complainant refused, M1 told Complainant that she could not return to work until she added the toe guard to her boot. Complainant was told that being on the work room floor in a boot without a toe guard was a violation of the footwear policy. Complainant maintained that several African-American employees who also had boots on were allowed to work on the floor without toe guards. On March 28, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of race (Caucasian) when management would not permit her to work from November 27, 2012, through January 27, 2013.
Following an investigation by the Agency, Complainant requested a hearing before an Equal Employment Administrative Judge (AJ) but then withdrew her request in favor of a FAD. The FAD determined that Complainant did not demonstrate that she was subjected to discrimination. Specifically, the FAD found that even assuming arguendo Complainant established a prima facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that having a boot on with open toes was a violation of the footwear policy as the requirement of closed toed footwear was a matter of safety.
To show pretext, Complainant and several witnesses argued that four other employees not of her protected basis were allowed to work in a boot without a toe guard. The Agency explained that the four comparators offered by Complainant were not similarly situated to her as two of the comparators were supervisors and the other two worked different tours. Nevertheless, M1 maintained that once she told them that they needed toe guards to work on the work room floor they all complied.
M1 explained that the only reason that Complainant was sent home was because she told M1 that she was not going to get a toe guard. M1 indicated that once the safety hazard was brought to her attention, it warranted immediate action. M1 stated that Complainant was not forced to stay home but was told that in order to return to work she had to comply with postal rules and regulations and therefore she needed to secure a toe guard to avoid subjecting her foot to re-injury in an atmosphere that required pushing and pulling containers/racks during the workday.
M1 affirmed that she offered Complainant a toe guard; the union offered her two toe guards and the Safety Manager offered her one as well; however, none of the toe guards fit her open toed boot. M1 declared that Complainant's race was not a factor. The only issue was that Complainant was wearing the boot unprotected, had Complainant worn the boot with a toe guard it would have been acceptable footwear. The Agency maintained that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination.
Neither Complainant nor the Agency submitted an appeal brief.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that assuming arguendo that Complainant established a prima facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not allowed to return to work until she wore a toe guard with her boot. We find that the Agency clearly articulated that Complainant was sent home based on safety concerns. Further, we find that while Complainant and other employees indicated that others had been seen wearing open toed shoes or boots without a toe guard, M1 stated that once she told them that they needed toe guards to work on the work room floor they all complied. Complainant did not establish that this was not true. Therefore, based on the record, we find Complainant did not provide any evidence which suggests that there was pretext or that discriminatory animus was involved.
The Agency's FAD is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 (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
___4/1/16_______________
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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