Aliza C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Mar 11, 2016

0120143244 (E.E.O.C. Mar. 11, 2016)

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

Aliza C.,1
Complainant,

v.

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

Appeal No. 0120143244
Hearing No. 420-2014-00061X
Agency No. 4G350011613

DECISION

Complainant filed an appeal from the Agency’s September 2, 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 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 Rural Carrier at
the Andalusia Post Office, in Andalusia, Alabama. On September 10, 2013, Complainant filed
an EEO complaint alleging that the Agency discriminated against her on the bases of race
(African-American), sex (female), and reprisal (for protected EEO activity) when: (1) on May
29, 2013, she was told by her Postmaster that she could not wear a medical boot while driving
a postal vehicle and she was not permitted to work on or around June 5-8 and 10, 2013; and
(2) on June 18, 2013, she was issued a Seven-Day No Time Off Suspension for Failure To
Follow Instructions.

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
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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Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the
AJ denied the hearing request on the grounds that she failed to comply with numerous pre-
hearing orders. Complainant does not argue on appeal that she was improperly denied a
hearing. The AJ remanded the complaint to the Agency, and 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.

FACTUAL BACKGROUND

Complainant asserts that she provided a doctor's note to the Postmaster (P1) which explained
that she could wear a medical boot to work with no restrictions.2 Complainant also states that
she did not request an accommodation because she did not need one, nor did she request light
duty, but she was sent home because P1 would not let her drive with the boot. Complainant
also testified that P1 issued her a Notice of Seven-Day Suspension on June 18, 2013, for
failure to follow Instructions and disobeying a direct order.3

The Agency’s Occupational Health Nurse Administrator (N1) for the Alabama District Office
in Birmingham, Alabama, maintains that there have been several occasions where she has
discussed with the District Safety Manager the safety aspects of carriers driving while wearing
a medical device on the foot they use to operate a vehicle. N1 further testifies that because
medical boots do not allow for ankle flexion, along with the fact that the boot has an
approximate one to two inch sole, there is increased "reflex" time as a result of having to lift
the entire leg off the gas pedal high enough to clear the side of the brake pedal and apply the
brakes. N1 further testifies that prohibiting the use of a medical boot (on the right foot) while
operating a postal vehicle would and should be the same for all carriers and is totally and
completely based on safety.

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”).

We agree with the Agency’s analysis and conclusions finding insufficient evidence of
discrimination or retaliation. Complainant failed to present evidence that similarly situated
2 Complainant does not raise a claim of disability discrimination.
3 Complainant drove a postal vehicle on her route with her boot.

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employees with medical boots on their right foot were permitted to drive a postal vehicle. We
note that the record does not establish that the Agency’s legitimate, non-
discriminatory/retaliatory explanation for its employment actions were pretext or otherwise
motivated by discriminatory/retaliatory animus.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision.4

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 tends 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
4 We note that Complainant does not present any argument on appeal.

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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

March 11, 2016
Date