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

Equal Employment Opportunity Commission

Feb 20, 2015

0120130629 (E.E.O.C. Feb. 20, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120130629

Hearing No. 490-2011-00047X

Agency No. 1H-372-0008-10

DECISION
On December 3, 2012, Complainant filed an appeal from the Agency’s 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Mail Handler at
the Processing and Distribution Center (P&DC) located in Chattanooga, Tennessee. On April
16, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against
her on the bases of race (Caucasian), disability, and in reprisal for prior protected EEO activity
when: (1) beginning on December 19, 2009, she was instructed to sit in the stand by room; (2)
on December 26, 2009, her non-scheduled days were changed; (3) on January 8, 2010, she
was charged Absent without Leave (AWOL); (4) on January 11, 2010, she was instructed to
work outside her medical restrictions; and (5) on January 5, 2010, management did not provide
a response to her leave request.

The Agency dismissed the following additional claims: (a) from August 29, 2009 through
September 2, 2009 she was charged AWOL; (b) on September 6, 2009, she was taken off
higher level; (c) on September 7, 2009, Labor Day, she was not permitted to work the holiday;
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(d) on December 20 and 21, 2009, she was told to use the public restroom; (e) on January 19,
2010, she was harassed about going to the bathroom; and (f) on June 10, 2010, the supervisor
instructed employees not to talk to her or to have lunch with her. Claims a, b, and c were
dismissed for untimely EEO contact. Claims d, e and f were dismissed for failing to state a
claim. Complainant does not challenge these dismissals on appeal.

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 EEOC
Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing
request after Complainant failed to comply with his scheduling order.1

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. The instant appeal followed but with no statement
from Complainant.

ANALYSIS AND FINDINGS
Assuming that Complainant has present a prima facie case of discrimination, we nevertheless
find that she has failed to establish that the Agency’s legitimate, non-discriminatory reasons for
its employment actions were pretext or otherwise motivated by discriminatory or retaliatory
animus.

Claim 1 - Instructed to Sit in the P&DC Room for Eight Hours

Complainant’s first-line supervisor (S1) affirmed that over a 12-day period, Complainant was
instructed to sit in the stand by room because no work was available within her medical
restrictions. The Manager, Distribution Operations, (M1) testified that new work could have
developed at any given time.

Claim 2 - Non-Scheduled Days Changed to Saturday and Sunday.

S1 affirmed that Complainant’s off days were changed because there was no work within her
restrictions during her scheduled work hours on Saturday and Sunday. M1 also affirmed that
the postal service had more work available within Complainant’s restrictions on Thursday and
Fridays as opposed to Saturday and Sundays. Specifically, Complainant was assigned to repair
damaged mail in the 010 operation and that operation did not operate on Saturday and Sunday.

1 Complainant likewise does not raise the dismissal of her hearing request on appeal, and the
record is devoid of evidence to support a finding that the AJ’s dismissal was an abuse of
discretion.
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Claims 3 & 5 - Charged Absent without Leave and No Response to Leave Request

Both S1 and M1 explained that the sole reason that Complainant was charged AWOL was
because she did not have approved leave for her absence on January 8. 2010. There is a
dispute as to whether Complainant submitted PS Form 3971 on January 5, 2010, to take eight
hours annual leave on January 8, 2010. The negotiated local memorandum of understanding
requires employees to submit requests for leave in duplicate. However, the record is devoid of
documentary evidence to suggest that Complainant followed this procedure. S1 also indicated
that Complainant was aware before the end of her tour on January 7, 2010, that she did not
have approved annual leave on January 8, 2010. Despite this knowledge, rather than submit a
request for annual leave for the next day, Complainant took off. Since Complainant did not
have approved annual leave on January 8, 2010, the decision to designate her leave on January
8, 2010, as AWOL was consistent with Agency policy.

Claim 4 - Instructed to Work outside Her Medical Restrictions

Both S1 and M1 deny requiring Complainant or any other employee to work outside their
medical restrictions. In addition, both S1 and M1 testified to having no knowledge of
Complainant performing tasks outside her medical restrictions.

Complainant did not explain why she could not carry tubs of Netflix tapes with her left hand,
as there were no restrictions on the use of that hand. In addition, management noted that if the
weight of the tubs exceeded Complainant’s 20-pound lifting restriction, as alleged, she could
have taken some tapes out of one tub and put them into another one to ensure that the weight
did not exceed 20 pounds. Complainant does not assert that management prohibited her from
doing that.

CONCLUSION
Upon review of the record, we find insufficient evidence of pretext or discriminatory animus
on the part of any management official. Accordingly, we AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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.
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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 9-18 (November 9, 1999). 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
February 20, 2015