Anisa U.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Dec 7, 2018

0120172715 (E.E.O.C. Dec. 7, 2018)

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

Anisa U.,1
Complainant,

v.

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

Appeal No. 0120172715

Hearing No. 532-2016-00010X

Agency No. 1C-451-0031-15

DECISION

On July 28, 2017, 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
June 27, 2017, final decision concerning her equal employment opportunity (EEO) complaint
alleging 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 Processing
Clerk at the Agency’s Processing and Distribution Center facility in Columbus, Ohio.

Complainant worked in a modified job assignment due to her job-related medical condition
affecting her left knee and back. Complainant’s modified duties included rewrapping and
repairing damaged mail. Complainant asserted that she was denied overtime by her supervisor
(“Supervisor”), who was aware of her medical condition.

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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In an email dated January 15, 2015, addressed to another employee who was looking for a
package, the District IOP Coordinator (“Coordinator”) informed the employee that he should
look in the “cripple section,” referring to the area where damaged packages are repaired.
Complainant was made aware of the email on January 16, 2015, when someone posted it.
Complainant indicated that the email’s reference of the “cripple section” was to the section
where Complainant and other “limited duty” employees (those on workers’ compensation due to
work-related injuries) worked.

On June 1, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of disability when:

1. Complainant was denied overtime and holiday work on unspecified occasions;
and
2. Complainant was subjected to harassment based on the derogatory remark in the
email by the Coordinator.

The matter was accepted for investigation. However, Complainant failed to provide the
Investigator with an affidavit in support of her complaint. On June 1, 2015, 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). Complainant timely requested a hearing.
Complainant’s attorney (“Attorney”) was informed by the Agency that Complainant failed to
submit an affidavit during the investigation. The Attorney provided the Agency attorney with an
unsigned copy of the affidavit on February 27, 2017.

Subsequently, Complainant withdrew her hearing request on May 26, 2017. The AJ granted
Complainant’s request and remanded the matter to the Agency for a final decision.
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.

This appeal followed. On appeal, Complainant asserted that the Agency falsely asserted that she
did not provide evidence in support of her complaint. The Attorney stated that Complainant
provided an affidavit to the Agency on February 27, 2017, and included a copy of the affidavit
with her appeal. We note that the affidavit provided by the Attorney did not contain
Complainant’s signature. Further, Complainant argued that the use of the term “cripple section”
constituted direct evidence of discriminatory intent and that the Agency’s reasons for denial of
overtime was pretext for discrimination.

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
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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”).

Claim (1) – Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or 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. 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, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (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 Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

For the purposes of analysis, we assume Complainant is an individual with a disability. 29
C.F.R. § 1630.2(g)(1). Upon review of the record, we find that the Agency provided legitimate,
nondictionary reasons for its actions. The Supervisor averred that Complainant was denied
overtime and holiday pay between October 2014 to February 2015. He noted that none of the
employees in Complainant’s unit were allowed to work overtime or on holidays unless they had
a particular skill like “shred mail.” Furthermore, he said that repairing mail is not needed on
holidays or required overtime because the damaged mail does not need to go out at a particular
time as the regular mail does.

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We note that at the time of the investigation, Complainant failed to provide the Agency with an
affidavit during the investigation listing the dates of the alleged denial of overtime. A review of
the unsigned affidavit later submitted also provides little additional information regarding any
specific dates when Complainant was denied overtime and/or holiday time. Beyond her bare
assertions, Complainant produced no evidence suggesting the Supervisor’s proffered explanation
for why overtime and holiday scheduling was not available to Complainant was really a pretext
for discrimination. Complainant has argued that the reference to the “cripple section”
established discriminatory intent on the part of the responsible Agency officials. We are not
persuaded by Complainant’s assertion. It is undisputed that the Supervisor, who was responsible
for scheduling overtime and holiday work for Complainant’s unit, was not the official alleged to
have made, or been involved with, the comment. In sum, we conclude that Complainant has not
established her claim of discriminatory disparate treatment alleged in claim (1).

Claim (2) - Harassment

It is well-settled that harassment based on an individual’s disability and prior EEO activity is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of harassment under those bases, Complainant must show that: (1) she is a qualified
individual with a disability covered under the Rehabilitation Act; (2) she was subjected to
unwelcome conduct; (3) the harassment complained of was based on her disability; (4) the
harassment had the purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis
for imputing liability to the employer. See Flowers v. Southern Reg’l Physician Serv. Inc., 247
F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001).
The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person
in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC
Notice No. 915.002 (March 8, 1994).

Again, for the purposes of analysis, we assume Complainant is an individual with a disability.
29 C.F.R. § 1630.2(g)(1). In claim (2), Complainant indicated that the Coordinator sent an email
to another employee, instructing him to look for a package in the “cripple section.” The
Coordinator admitting to using the term in the email to another employee. He averred that this
was the term that was used to describe the repair unit and the damaged mail in the Agency’s
facility in Cincinnati. He argued that the comment was not directed at Complainant or the other
employees in the unit. Upon review of the record, we find that Coordinator’s use of the term
“cripple” was clearly inappropriate. However, the Coordinator used the term in an email to
another employee. It was not intended for distribution beyond that employee. Someone shared
the email and publicly displayed the comment, which was how Complainant learned of it. Based
on the particular circumstances presented by this record, we find that the single use of a
derogatory term in an email directed to another employee was not sufficiently severe or
pervasive to create a hostile work environment.

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However, we do note that the use of the term “cripple” is wholly inappropriate and offensive in
the workplace. The Agency has now been made aware that the Coordinator used the term, and
has indicated that the term was used in the Agency’s facility in Cincinnati to refer to the repair
mail unit. We caution the Agency that failure to now proactively address the use of the term
“cripple” in its workplace may result in liability in a different case.

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.

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.
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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

December 7, 2018
Date