Caroline H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 2, 20180120172404 (E.E.O.C. Nov. 2, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Caroline H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120172404 Agency No. 4K270008616 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403(a), from the June 14, 2017 Final Agency Decision (“FAD”) 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was working as a City Carrier Assistant ("CCA"), Q-01, at the Statesville Post Office in Statesville, North Carolina. On November 18, 2016, Complainant filed an EEO complaint alleging that she had been subjected to discriminatory harassment by the Agency on the bases of race (African-American), sex (female), disability (back impairment caused by an on-the-job injury), and reprisal (engaging in prior protected activity) when: 1. on July 25, 2016, she was terminated during her probationary period for failure to properly perform her assigned duties, and 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. 0120172404 2 2. on unspecified dates after sustaining a back injury on July 5, 2016, she was assigned duties outside her medical restrictions.2 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 (“EEOC” or “Commission”) Administrative Judge. Complainant opted for a FAD instead. In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The record contains the following relevant facts: Complainant’s first day of work as a City Carrier Assistant (“CCA”) was April 2, 2016. Complainant’s CCA responsibilities included collections, and sorting or casing mail, and the ability to lift 70 pounds and safely drive a postal vehicle. New hires were subject to a probationary period lasting 90 working days or 120 calendar days, whichever came first, as specified in the Collective Bargaining Agreement (“CBA”) between the Agency and the Union. Complainant was still a probationary employee on July 25, 2016, when she was terminated, having accumulated a total of 77 work days, and 114 calendar days in the CCA position. Complainant worked under two supervisors (“S1” and “S2”), who in turn reported to the Postmaster (“PM”). All three were white/Caucasian, had no prior involvement in EEO activity, and their disability status is not included in the record. PM and S2, a Supervisor, Customer Service, interviewed and selected Complainant and one other candidate (“C1”) for the CCA position. Complainant and C1 reported to S1, an Acting 204-B Supervisor, who made the day to day decisions regarding their route assignments and schedules. Probationary employees were subject to 30, 60 and 80-day evaluations (“Probationary Reports”) which graded various factors, such as “work quality.” The 30-day Probationary Reports reflect that C1 and Complainant initially shared the same challenges with the CAA position, struggling to complete routes within the authorized time. However, C1 demonstrated improvement in her 60-day report, whereas Complainant continued to struggle. S1, S2, and PM offered Complainant advice on increasing her efficiency, and S1 arranged an additional ride-along in April 2016 to provide further training in completing her routes in time, but still no improvement. Complainant sustained an on-the-job back injury the day after she received her 60-day report. She submitted medical documentation to the Office of Workers Compensation Programs (“OWCP”), which approved a restricted job as she recovered. S1 consulted the Employee and Labor Relations Manual (“ELM”)., the Postal Carrier Handbook, and S2, who had more supervisory experience, and drafted an “Offer of Modified Assignment,” which met Complainant’s restrictions. On July 5, 2016, Complainant accepted the assignment. S1 assigned 2 The Agency also addresses harassment allegations related to Complainant’s disability that are not in her Formal Complaint, but will be included in our analysis as they are in the FAD 0120172404 3 Complainant to a “riding route” requiring minimal instances of leaving the vehicle. Complainant was provided additional time, and the route lasted no more than 4 hours, per her restrictions. As Complainant was restricted from lifting anything heavier than 5 pounds, S1 or other carriers loaded and unloaded her vehicle. Complainant was instructed to carry small batches of mail to the truck when assistance was unavailable. On July 28, 2016, Complainant received additional medical documentation and accepted a new modified job offer that allowed her to ride for 6 hours and lift up to 10 pounds. Even taking Complainant’s injury-related restrictions and job modifications into account, she was still unable to complete her routes within the authorized time frame. Noting the lack of perceptible improvement both before and after Complainant’s injury, S1 decided to terminate Complainant’s probationary employment. She drafted the Notice of Termination During Probation with the assistance of Labor Relations, and based on the CBA and the Carrier Handbook. S2 supported S1’s decision, and PM was the concurring official. In its FAD, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 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”). 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). 0120172404 4 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). When establishing discriminatory motive, comparative evidence relating to other employees will only be considered relevant if all relevant aspects of the employees' work situation are identical or nearly identical. See Anderson v. Dep’t of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003) other citations omitted. Specifically, non-probationary employees are not “similarly situated” comparators for a probationary complainant. See Reardon v. United States Postal Serv., EEOC Appeal No. 0120071576 (June 4, 2009); see also EEOC Compliance Manual, Section 604, Theories of Discrimination (Jun. 1, 2006) (individuals will qualify as comparators only where they reasonably can be expected to receive the same treatment in the context of the employment-action at issue). Likewise, an employee cannot be considered “similarly situated” to the complaint if they have different medical restrictions. See Kirkman v. United States Postal Serv., EEOC Appeal No. 01975352 (May 18, 2000). Claim 1: Termination During Probationary Period The Commission has long held that a probationary employee may be terminated at any time based on his or her work performance or conduct during the probationary period under Office of Personnel Management (“OPM”) regulations. See 5 C.F.R. § 315.804, see also Harmon v. Dep’t of Commerce, EEOC Appeal No. 01A33155 (Sept. 11, 2003). Consistent with these regulations, the Commission has long held that probationary employees are “subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category.” Tristan W. v. United States Postal Serv., EEOC Appeal No. 0120152084 (Jul. 11, 2017) citing Complainant v. Dep't of the Treas., EEOC Appeal No. 0120132983 (Jun. 10, 2015), Coe v. Dep’t of Homeland Sec., EEOC Appeal No. 0120091442 (Oct. 7, 2011); Kaftanic v. United States Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988), see also Chadwick S. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120152446 (Dec. 8, 2017). The Agency cites Complainant’s work performance as its legitimate nondiscriminatory reason for terminating her employment during the probationary period. According to the Agency, Complainant was unable to “properly perform her assigned duties” and showed no improvement after receiving additional training and accepting two modified job offers. 0120172404 5 The Agency also contends that its actions were consistent with both Agency policies and Federal regulations on probationary employees, citing the OPM regulations referenced above, and providing its Employee and Labor Relations Manual (“ELM”). Under ELM Section 365, prior to completing the probationary period, an employee may be terminated for “work performance or conduct [that] fails to demonstrate qualification for continued [Agency] employment.” Based on the record, for a CCA to “properly perform her assigned duties,” she must be able to complete her routes within the authorized time frame. While we note that Complainant received “satisfactory” ratings on her 30 and 60 day Probationary Reports, and passed the safety test, Complainant did not complete her route within the authorized time frame or show improvement. S2 recounts that when meeting with Complainant for her 30 and 60 day Probationary Reports, she “counseled [Complainant] on items she needed to improve on, specifically on finishing the work she is given each day, and not calling in for help.” The Agency offers evidence that after Complainant’s on the job injury, her route was changed to meet her restrictions, but she still was unable to timely complete her route. Complainant alleges that S1 treated her unfairly, by, among other things, subjecting her to “unreasonable expectations” based on seasoned carriers for route completion times. However, Complainant does not provide evidence that this alleged unfair treatment is based on her membership in a protected class. As previously discussed, an inference of discrimination may be raised where a similarly situated employee outside Complainant’s protected class was treated more favorably (e.g. provided more time). During the relevant time frame, the only probationary CCA besides Complainant was C1. Complainant and C1 were not “similarly situated” because C1 did not have a modified assignment or medical restrictions. Complainant alternately argues that she was not properly trained for the CCA position. Lack of training may give rise to a pretext for discriminatory intent. For instance, we found discrimination where a complainant who was terminated during his probationary period for poor performance, provided evidence that he received significantly less on-the-job training (50 instead of 90 days) than employees outside his protected class. See Hayes v. United States Postal Serv., EEOC Appeal No. 0120070965 (Jan. 3, 2008). In the instant case, the record does not indicate improper training or denial of training, but rather shows that Complainant received additional training. Texts and emails between Complainant and S1 throughout May and June 2016 demonstrate that S1 made herself available to advise Complainant during her route, and provided encouragement about improving her route completion times. PM recounts an evening where Complainant returned late from her route, and both she and S1 met with Complainant and offered suggestions to improve her performance. Complainant does not dispute S1’s testimony that when she could not accompany Complainant as initially promised, she arranged for another carrier to conduct a ride along training with her instead. S2 also testifies that she had multiple conversations with Complainant about improving her time. While Complainant may have benefitted from more training, this is insufficient evidence of discriminatory motive given the lack of comparator evidence and the amount of assistance she received. 0120172404 6 See Harmon v. Dep’t of Commerce, EEOC Appeal No. 01A33155 (Sept. 11, 2003) (finding no discrimination where complainant was terminated for poor performance during his probationary period where the agency provided evidence that he failed to show improvements after additional training). Complainant has not established pretext for Claim 1. Reasonable Accommodation An agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agriculture, EEOC Appeal No. 0120120400 (Dec. 3, 2015). While Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Lynette B. v. Dep’t of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). Claim 2: Assigned duties outside medical restrictions We find Claim 2 may be appropriately analyzed as a denial of reasonable accommodation claim. Complainant does not identify an accommodation other than her OWCP-approved job restrictions, nor does she cite specific incidents where she was assigned duties outside of her restrictions. Rather, Complainant raises general allegations such as, “[her] injury and limitations were not considered when scheduling [and] there were times when [she] was not given assistance when loading [her] truck.” Complainant also alleges that her routes violated her walking restrictions. To the extent that Complainant’s request for “reasonable accommodations” refer to the OWCP- approved medical restrictions arising from her back injury, both the July 5, 2016 and July 18, 2016 modified job offers, which Complainant accepted, meet her medical requirements. The Agency has provided evidence that it met Complainant’s restrictions. S1 testified that she did “not know how [Complainant] could have exceeded the walking limitation” because she had assigned Complainant to Route 11, which “may have a couple of dismounts on the route like at a business, or for a customer that is disabled and can't go to their mailbox, but other than that it is an all riding route.” S1 also noted that she had been scheduling Complainant to work on Sundays because there was a lighter mail load on Sunday, making it easier to meet Complainant’s lifting restriction. S1 avers that there were instances where assistance was not available for loading Complainant’s truck, she explains that Complainant’s restriction was not violated because she was instructed to carry small batches of mail to the truck when loading. We note that S2 testified that any additional time due to loading would not count against Complainant in her Probationary Report. 0120172404 7 Complainant has not provided us with sufficient evidence, such as sworn statements or documents, tending to show that management failed to honor her medical restrictions. While there is evidence that S2 had doubts about Complainant’s injury, Complainant has not shown that S1, S2, and PM did not comply with her restrictions. Consequently, we find that the record evidence does not establish that the Agency violated Complainant’s medical restrictions. Harassment/Hostile Work Environment To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. As this is a reprisal allegation, Complainant must also prove that the conduct was taken because of her prior EEO activity (request for reasonable accommodation). Only if Complainant establishes both elements, hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (June 18, 1999). We have long held that common workplace occurrences, such everyday events are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. See Wolf v. United States Postal Serv., EEOC Appeal No. 01961559 (July 23, 1998); Long v. Veterans Admin., EEOC Appeal No. 01950169 (Aug. 14, 1997). Complainant alleges that since her injury, S1 assigned her to perform more duties and work on more Sundays, then “accosted” Complainant about her assignments nearly every day. Complainant also recounts that she and S1 “had a confrontation about [her] injury,” which concerned an incident where Complainant violated her own lifting restriction by carrying personal belongings that were significantly heavier than 5 pounds. We find these allegations describe routine work assignments, instructions and admonishments, which are common workplace occurrences. See Gray v. United States Postal Service, EEOC Appeal No. 0120091101 (May 13, 2010). 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 finding that Complainant did not establish discrimination as alleged. 0120172404 8 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. 0120172404 9 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 November 2, 2018 Date Copy with citationCopy as parenthetical citation