Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Apr 23, 2014

0120122276 (E.E.O.C. Apr. 23, 2014)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.

Appeal No. 0120122276

Hearing No. 410-2010-00013X

Agency No. 1H-302-0021-09

DECISION
Complainant filed an appeal from the Agency’s March 27, 2012 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS in part, and VACATES in part, the Agency’s Final Decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at
the Agency’s North Metro Processing and Distribution Center in Duluth, Georgia. On March
31, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against
her on the bases of race (African-American), sex (female), disability (leg), age (44), and in
reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

(1) On October 31, 2008, Complainant’s supervisor looked her up and down as if
he were mentally taking off her clothes;

(2) On November 18, 2008, Complainant was threatened by the manager;

(3) On December 17, 2008, Complainant was sent home and charged with Absent
Without Official Leave (AWOL);
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(4) On December 9, 2008, Complainant was placed on Emergency Suspension;

(5) On December 9 and 10, 2008, Complainant was charged AWOL; and

(6) On December 24, 2008, Complainant received a Notice of 7-day no time off
suspension.

By letter dated April 10, 2009, the Agency dismissed claims (1) and (2) pursuant to 29 C.F.R.
§ 1614.107(a)(1) for failure to state a claim, and claim (1) pursuant to 29 C.F.R.
§ 1614.107(a)(2) for untimely EEO Counselor contact. The Agency found that these two
incidents did not rise to the level of harassment and Complainant suffered no adverse actions as
a result of the Agency’s actions even if they occurred as Complainant described.

By letter dated April 22, 2009, the Agency dismissed the following amendment to
Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim
because it described ordinary, workplace events with which Complainant disagreed and did not
rise to the level of harassment:

(7) On April 1, 2009, Complainant was asked to update her medical documentation
and management gave her a designated area to take her breaks.

By letter dated May 27, 2009, the Agency accepted Complainant’s request to amend her
complaint to include the following claim based on age and in reprisal for prior protected
activity:

(8) On May 18, 2009, Complainant was placed on Emergency Placement.1

By letter dated June 5, 2009, the Agency dismissed the following amendment, pursuant to 29
C.F.R. § 1614.107(a)(1) for stating the same claim already accepted by the Agency for
investigation in Complainant’s instant complaint:

(9) On April 1, 2009, Complainant was denied an accommodation.

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 subsequently withdrew her
request. By order dated February 11, 2011, the AJ dismissed Complainant’s complaint from
the hearing process and ordered the Agency to issue a final decision without a hearing.
Consequently, the Agency issued a Final Decision pursuant to 29 C.F.R. § 1614.110(b).

1 We have reframed claim (8) to include Complainant’s emergency departure from work on
May 18, 2009, and to exclude the Agency’s questioning of her medical documentation as
explained in our analysis of claims (7) and (9).
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In its Decision, the Agency found that Complainant failed to establish a prima facie case of
race, sex, or age discrimination regarding claims (3) through (6) and (8) because she did not
identify any similarly situated employees, not in her protected groups, who were treated better
than she was under similar circumstances. With respect to age discrimination, the Agency
noted that seven employees with whom Complainant sought to compare herself were older than
Complainant.

For example, the Agency noted that both Complainant and S1, a supervisor, were sent home
by M1 (on different dates) for wearing inappropriate footwear in violation of the Agency’s
policy regarding safety on the workroom floor. (Claim (3)). The Agency noted that S1
returned to work after changing her shoes, while Complainant did not return after being sent
home to change her shoes. Even so, the Agency noted that S1 is not similarly situated to
Complainant. S1 is a supervisor, while Complainant is a Mail Handler. The Agency found no
evidence that M1’s reasons for sending Complainant home were a pretext to mask
discrimination.

The Agency considered the numerous other employees Complainant identified as possible
comparators, but found that the identified individuals were either the same race and/or sex as
Complainant, as old, or older than Complainant, or did not engage in the same conduct
Complainant did as described in claims (4) through (6) and (8).

Regarding claim (4), the Agency observed that S2 placed Complainant on emergency
suspension after Complainant was reported to have brought her husband to her duty station,
using her own badge inappropriately to gain access to the workroom floor for him. The
Agency noted that Complainant explained she was scheduled to attend a meeting with the
Agency’s Labor Relations and brought her husband with her for her own safety. The Agency
found that S2 had never placed any other employee on emergency suspension for a similar
violation of the Agency’s security policy. S2 also initiated the process to issue a Notice of 7-
day (no time off) suspension to Complainant for the same violation (claim (6)). The Agency
found that Complainant did not identify any employees who were treated better than she was
treated under similar circumstances. The Agency found the evidence did not show that S2’s
reasons for his actions were a pretext to mask discrimination.

Regarding claim (5), the Agency found that after her meeting with Labor Relations on
December 9, 2008, Complainant was placed on emergency suspension and told to go home for
the balance of the day. Complainant was charged, the Agency found, with 5 hours of AWOL
for December 9, 2008, and 8 hours of AWOL on December 10, 2008. The Agency found no
dispute that Complainant was placed in off-duty status by S2 and charged with violating the
Agency’s security protocol when she brought her husband to work. The Agency considered
Complainant’s explanation that she was sent home by S3 and expected to receive administrative
leave. The Agency found that S3 discovered after conducting a telephone conference with
other Agency officials, that Agency management had not agreed to provide Complainant with
administrative leave for the balance of the work day following her meeting with Labor
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Relations. S3 also stated that if Complainant was out of accrued annual leave, she would not
be paid. S3, the Agency noted, speculated that Complainant was probably out of leave in
December 2008. The Agency found that Complainant was properly charged AWOL that day
for falsely stating that she had been authorized administrative leave, and on the following day
after requesting annual leave if her leave balance was exhausted. The Agency found that
Complainant failed to identify any other employees who were not also charged AWOL when
absent from the workplace under similar circumstances and placed in emergency suspension
following a suspected violation of the Agency’s security protocol. The Agency found that
Complainant did not present evidence that the Agency’s legitimate, nondiscriminatory reason
for its actions were a pretext to mask discrimination.

Regarding claim (8), the Agency considered the evidence that Complainant was sent home on
emergency placement off-duty after Complainant’s actions towards S1. The agency found that
S1 questioned whether Complainant’s medical restrictions required Complainant to have breaks
and also that she take the breaks off of the workroom floor. The Agency noted that S1 stated
she felt Complainant approached her in a threatening manner. S1 stated that she told
Complainant she was too close and directed her to step back. S1 added that Complainant had
informed her that she was taking medication and warned S1 not to “mess” with her. S1 stated
that she had never had an employee approach her in a threatening manner and had not placed
another employee on emergency placement off-duty. The Agency found that Complainant did
not identify any other employees, not in her protected classes, who were treated better under
the same or similar circumstances.

The Agency found that Complainant did not establish a prima facie case of reprisal
discrimination with respect to claims (3) through (6). Specifically, the Agency found that
neither S2 nor M1 was aware of Complainant’s prior EEO activity from 2007. Additionally,
the Agency found the evidence showed that S1 was only aware of Complainant’s current
complaint, and only after S1 was contacted by the EEO investigator in March 2009.
Accordingly, the Agency found that Complainant established a prima facie case of reprisal
discrimination regarding only claim (8). Even so, the Agency found that Complainant did not
present any evidence that S1’s reasons for her actions were a pretext for any discrimination.
Specifically, the Agency noted that S1 sought the assistance of several other Agency officials,
including Labor Relations, before Complainant was placed on emergency leave following the
incident that occurred on May 18, 2009. The Agency found no evidence that Complainant’s
prior EEO activity played any role in the Agency’s decision to place Complainant off-duty for
approaching S1 in a threatening manner.

The Agency considered Complainant’s overall claim of harassment. The Agency found that
the Agency officials involved in each of Complainant’s claims provided reasonable
explanations and that their actions were warranted under the circumstances. Additionally, the
Agency found that the handful of incidents that occurred in December 2008, together with the
single incident that occurred in May 2009, were neither frequent nor severe and did not rise to
the level of harassment. Moreover, the Agency did not find that the actions Complainant
believed were harassment were shown by Complainant to be motivated by her race, sex,
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disability, age, or in reprisal for prior protected activity. Accordingly, the Agency found that
Complainant did not prove that she was subjected to harassment as alleged. The Final
Decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

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. (November 9, 1999) (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”).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he or she 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tex. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks

, 509 U.S. 502, 519 (1993).
To establish a claim of harassment a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on their statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994).
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In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies
that its decisions were motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental
Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v.
WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a
prima facie case, complainant must demonstrate that: (1) she is an "individual with a
disability"; (2) she is "qualified" for the position held or desired; (3) she was subjected to an
adverse employment action; and (4) the circumstances surrounding the adverse action give rise
to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir.
2001). The burden of production then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. In order to satisfy his burden of
proof, complainant must then demonstrate by a preponderance of the evidence that the
agency's proffered reason is a pretext for disability discrimination.

Id.
As a preliminary matter, we find that Complainant does not challenge the Agency’s dismissal
of claims (1) and (2) and we AFFIRM the Agency’s dismissal of these two claims on the
ground cited in the Agency’s Final Decision.

We do not agree with the Agency’s dismissal of claims (7) and (9). We do not find that
whether Complainant was denied a reasonable accommodation was among the accepted claims
of the instant complaint. The record indicates that Complainant requested as an
accommodation for her claimed disability, regular breaks from her work off the workroom
floor. We find that the events in claims (7) and (9), as well as the “questioning” of
Complainant’s medical documentation on May 18, 2009 (a portion of the Agency’s framing of
claim (8)), are parts of an overall claim alleging that the Agency denied Complainant a
reasonable accommodation. Thus, we find that these incidents are really one claim that
Complainant was denied a reasonable accommodation. This claim has not been accepted by the
Agency and therefore not properly investigated. While there has been some discussion of this
claim in the Agency decision, because this was not an accepted the issue the investigation did
not include evidence that would be normally included for an investigation of such a claim, such
as the work/medical restrictions recommended by Complainant’s physician. We find this claim
was improperly dismissed and not investigated by the Agency. We note that the Agency
claims that it asked Complainant a question pertaining to the accommodation issue and that
Complainant did not provide a response. We remind Complainant that she is obligated to
cooperate in the investigation of her EEO complaint. We therefore VACATE the Agency’s
dismissal regarding Complainant’s claim that her request for reasonable accommodation was
denied and REMAND this claim to the Agency for further processing.

We find the record supports the remainder of Agency’s Final Decision. Specifically, we find,
as did the Agency, that Complainant failed to identify any similarly situated employees, not in
her protected classes, who were treated better than she was treated. We find no evidence that
other employees had been observed by M1 wearing shoes with heels as high as those worn by
Complainant as identified in claim (3) who were not also instructed to change their shoes. We
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find no dispute in the evidence that Complainant did not return to work and was, accordingly,
charged AWOL for the balance of the work day. We find, as did the Agency, no evidence that
M1 was aware of Complainant’s prior EEO activity or her disability, and accordingly, we find
Complainant did not show that she was subjected to discrimination on any basis with respect to
claim (3). Even if M1 was aware of Complainant’s disability and prior EEO activity, we find
that Complainant failed to show that M1’s actions in claim (3) were motivated by
discrimination.

Regarding claims (4) through (6), we find the evidence supports the Agency’s finding that S2
was not aware of Complainant’s prior EEO activity, and no evidence that S2 had failed to
place other employees who he believed had violated the Agency’s security protocol on
emergency leave pending an investigation. We find Complainant does not deny that she
permitted her husband access to the workplace by using her own badge, without first obtaining
authorized access for him. We find Complainant did not present evidence that her race, sex,
disability, age, or prior EEO activity played any role in the events that followed her decision
that day to be accompanied by her husband without following the Agency’s procedures for
bringing a nonemployee into her workplace.

Regarding claim (8) (emergency placement off duty), we find the Agency properly found that
Complainant did not establish that she was discriminated against on the bases of age or reprisal
when she was placed on emergency leave following a confrontation with S1. We find no
evidence that similarly situated individuals were treated differently than Complainant was
treated or that the Agency’s actions were motivated by discrimination.

With respect to Complainant’s overall claim of harassment, we find that the Agency has
articulated legitimate, nondiscriminatory reasons for the actions Complainant alleged to be
harassment. We find that Complainant has not shown that the Agency’s actions in claims (1) –
(6) and (8) were motivated by her race, sex, age, disability, or her prior protected EEO
activity.

CONCLUSION
We AFFIRM the Agency’s Final Decision regarding claims (1) - (6) and (8) (as defined in this
decision). We VACATE the Agency’s Final Decision regarding the denial of reasonable
accommodation claim and we REMAND the denial of reasonable accommodation claim to the
Agency for further processing as set forth in the Order herein.

ORDER

(E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R.
§ 1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claim within thirty (30) calendar days of the date this decision becomes final. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
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this decision becomes final, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.

A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION

(K0610)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See

29 C.F.R.
§ 1614.409.
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.

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.
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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

(T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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
April 23, 2014