0120142753
04-08-2016
Beryl B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Beryl B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120142753
Agency No. 4E640007913
DECISION
On July 15, 2014, Complainant filed an appeal from the Agency's June 12, 2014, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the FAD properly found that Complainant was not subjected to discrimination and harassment based on her disability (nerve deafness) when: (1) since November 2012, she has not been reasonably accommodated with a caption call phone; (2) on May 8, 2013, she was told she could not work the APC [Automated Postal Center] machine "because of [her] ears"; (3) on May 21, 2013, her request for sick leave was denied; and (4) on an unspecified date the Postmaster had another employee perform her job of verifying stock and asked the Complainant to sign off on it.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full Time Lead Sales & Services Associate at the Agency's Joplin Station facility in Joplin, Missouri. The following facts are set forth in the Agency's Final Decision (FAD):
Reasonable Accommodation
Complainant alleges that both the Postmaster and a Supervisor were involved in the denial of her accommodation request. She testified that a customer provided her with a Caption Call phone free of charge in November, 2012; however, Agency management denied the service required to activate the phone. Complainant states that she was never given a reason why the phone could not be activated, and was only advised that the District Office denied the request for the caption call phone on April 23, 2013.
Complainant identified her medical condition as nerve deafness. She offered that her physician diagnosed her condition when she was three years old, and her condition was permanent ("long term-life"). She added that she had worked for the Postal Service for almost 27 years; and management officials were fully aware of her medical condition. In describing the duties that she was not able to perform, Complainant offered that she had limited ability to speak on the phone; and she needed to have people look directly at her when speaking to her. "I am able to do all my duties. The phone would be my (only) limited ability." (ROI, Affidavit A, p. 4).
The record included medical documentation for Complainant from the St. John's Regional Medical Center, dated October 1, 2002. An audiologist indicated that Complainant had a bilateral, severe-to-profound sensorineural hearing loss, and utilizes one hearing aid, and that, "she will need special accommodations in certain situations." (ROI, Affidavit A, pp. 24).
Re-assignment from Automated Postal Center (APC)
Complainant states that it was part of her job description to watch the APC machine, keep it stocked, and repair it when necessary. However, on May 8, 2013, the Postmaster told Complainant that she could not work on the APC machine "because of her ears." Instead, he and another Supervisor assigned a Postal Support Employee (PSE) Clerk to watch the machine. Complainant contends she was able to perform the job duties required to watch the APC machine, offering that she had proven, over and over, her whole career, that she could handle all of her duties.
Denial of Sick Leave
The record reflects that on May 21, 2013, Complainant submitted a PS Form 3971, requesting sick leave for an out-of-town appointment on May 29, 2013. Complainant's Supervisor denied her sick leave request on May 22, 2013, and she was notified of the denial by email. Complainant confirmed in her complaint that she did not discuss the denial with her Supervisor or Management, but she talked to her Union Representative and filed a grievance.
Re-assignment of Duties
On May 15, 2013, Complainant alleges the Postmaster had another employee perform Complainant's job of verifying stock and asked Complainant to sign off on the task when it was completed. Complainant refused to sign off on the stock verification since she did not witness the count.
On October 17, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of issues presented above. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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. Complainant has not submitted any contentions on appeal.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Rehabilitation Act case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant is a qualified individual with a disability, pursuant to the Rehabilitation Act, and that she established a prima facie cases of discrimination based on disability, we find that the Agency articulated legitimate, non-discriminatory reasons for its decision to: (1) not allow Complainant to work the APC machine; (2) deny Complainant's sick leave request that she made on May 21, 2013; and (3) request that another employee perform Complainant's job of verifying stock and asking Complainant to sign off on it. We find that Complainant failed to demonstrate that any conduct on the part of the Agency was based on discriminatory animus.
The Postmaster testified that Complainant had previously advised management staff that she had trouble hearing when there was a lot of background noise. The APC machine was located next to two automated doors which serve as the primary entrances to the facility. The doors made a fair amount of noise every time they open. In an effort to address Complainant's concern about her ability to hear when background noise was present, the Postmaster assigned the duties near the APC machine to another Clerk. The primary purpose of the duties near the APC machine was to instruct and coach customers on how to use it - which the Postmaster felt may have been difficult if Complainant could not hear the customer. The Postmaster testified, and Complainant did not dispute, that when Complainant requested to be allowed to try to service the customers at the APC machine, "[m]anagement instantly agreed, and has allowed her to do so ever since."
The Postmaster was the deciding official with respect to Complainant's leave request dated May 21, 2013. He testified that Complainant's leave slip came in "late in the process," explaining that employees should request leave by the Monday prior to the schedule being posted; and that Complainant's request came in either Tuesday or Wednesday. Additionally, the Postmaster testified that there were three Clerks assigned to that Office, and that two people are needed to cover the Office at all times. On the date in question, there were two people already scheduled for, and on, vacation. This meant there were not enough staff to cover the Unit. Pursuant to the Employee and Labor Relations Manual (ELM), "[i]n cases of incidental leave Management has the right to deny leave requests according to the ELM." Complainant's leave request was denied because there were not enough clerks to cover the unit if she had been absent.
With respect to Complainant's allegation that the Postmaster requested that another employee perform Complainant's job of verifying stock and subsequently asked her to sign off on it when it was complete, the record reflects that Management holds the Unit Reserve Stock and anyone, including another member of Management, can provide the verification on a stamp return. The Postmaster testified that on the date in question, he prepared a return from the Unit Reserve Stock to the Stamp Distribution Network (SDN) while Complainant was at lunch. In order to return stamps, they must be counted, and verified by a second person. The Postmaster testified that another Sales and Services Associate assisted him with the stock, and when Complainant returned from lunch, "she asked to take over and [...] gladly let her." The Postmaster affirmed that Complainant was not asked to sign off on anything she had not had the opportunity to count. Nothing contained in the record raises any concern that any action taken in reference to this stamp stock count and verification was done in consideration of Complainant's disability. We concur with the FAD's reasoning that the Agency articulated a legitimate business reason for requesting the assistance counting and verifying the stock while Complainant was at lunch. Complainant has presented no evidence in the instant matter to establish that the Agency's actions here were pretext for unlawful discrimination.
Failure to Accommodate
An agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Enforcement Guidance - Reasonable Accommodation. The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630.
After careful review of the record, we find that Complainant has not established that she was denied a reasonable accommodation with respect to the Agency's failure to have a working caption call phone installed for her to use. Complainant received the caption call phone from a customer. Upon receipt, she presented the phone to the Postmaster and requested it be installed. Installation of the caption call phone was approved by local Agency Management, but it was not approved by the Agency's overall Information Technology department. As the Postmaster explained, the phone would have to be approved to be installed and to work with the Agency's Intranet. Explicitly, the Postmaster stated the phone required "a lot of special equipment to work with the Internet that works in conjunction with the Agency's Intranet." At the time the instant complaint was filed, the Agency maintains that Management was still working to bring about Complainant's installation request.
Based on the above, we find no persuasive evidence that she was denied a reasonable accommodation. At the outset, we note that at no time did Management tell Complainant that she could not have the phone. Additionally, we find that Complainant failed to identify any specific instance where she needed a caption call phone at work. At no point on appeal has Complainant articulated what essential function of her job she required the caption call phone to perform, nor is there any specific medical evidence indicating that she needed the caption call phone to perform the essential functions of her position. In this regard, we note that there was no dispute that a co-worker was always provided to Complainant as a back-up in order to assist her with tasks when necessary which appears to have accommodated her. Although this was not the accommodation of choice, Complainant has not established that it was not effective.
Harassment
With respect to any contention by Complainant's that she was subject to a hostile work environment with respect to the matters set forth in her complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly found that Complainant failed to demonstrate she was subject to discrimination as alleged; the Agency's final decision is AFFIRMED. Complainant did not establish that she was denied a reasonable accommodation, or otherwise subjected to discrimination or harassment.
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
__4/8/16________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120142753
2
0120142753