Corrina M., 1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 20, 2019

0120181698 (E.E.O.C. Aug. 20, 2019)

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

Corrina M., 1
Complainant,

v.

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

Appeal No. 0120181698
Hearing No. 451-2013-00208X
Agency No. 1G782001411

DECISION

On May 1, 2018, 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
March 29, 2018, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether the Agency’s final decision, (FAD) correctly concluded that Complainant failed to prove
that she was subjected to discrimination based on national origin, disability, and retaliation (prior
EEO activity), when:

1. On August 19, 2011, she was mailed a Letter of Warning for four absences;

2. On September 2, 2011, she was denied a reasonable accommodation; specifically, she was
denied use of leave and/or a change of schedule; 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.
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3. On December 8, 2012, she was issued a Seven (7) Day Suspension for Continued
Unacceptable Attendance - Continued Failure to Meet the Attendance Requirements of her
Position.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk
at the Agency’s Midland Postal & Delivery Facility, (P&DF) in Midland, Texas. On November
22, 2011, and March 15, 2013, Complainant filed two EEO complaints, (both subsequently
consolidated) alleging that the Agency discriminated against her on the bases of national origin
(Hispanic), disability (mental), and reprisal for prior protected EEO activity as set forth 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. Complainant timely requested a hearing but
subsequently withdrew her request. On September 9, 2014, the Agency issued a FAD finding no
discrimination; and on October 10, 2014, Complainant filed an appeal with the Commission.

On November 16, 2017, the Commission vacated the Agency’s decision and remanded the matter
for a supplemental investigation regarding Complainant’s reasonable accommodation complaint
in order to further develop an adequate factual record, including any contention by the Agency that
provision of a reasonable accommodation would impose an undue hardship. The Commission also
required the Agency to ensure that the investigator obtained all pertinent evidence to address
Complainant’s reasonable accommodation claim including, but not limited to sworn affidavits
from responsible management officials and other documentary evidence regarding how
management responded to Complainant’s request for accommodation. The Commission also
requested issuance of a new FAD. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision again concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

Issue #1

Complainant disclosed that the dates of the absences cited in the Letter of Warning (LOW)
were May 4 - 13, 2011, May 21 - 22, 2011, June 18 - 19, 2011, and July 21 - 23, 2011. She
alleged that her supervisor, the Plant Manager (PM), ordered the Maintenance Manager (MM) to
issue her a LOW for unacceptable attendance and failure to meet attendance requirements. She
explained that MM told her that his hands were tied and that the order came from upper
management. Complainant disagreed with the decision because she believed she was being
disciplined for having the disability of chronic severe depression; and that she provided
management with documentation for every absence. She maintained that management was aware
of her disability because she notified them verbally and they were aware that she was hospitalized
twice for her condition.

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She identified T1, a Black female Tour 1 employee, as someone who was treated differently.
According to Complainant, if she had as many absences and incidents of tardiness as T1, who
reported to another supervisor, she would have already been fired. She explained that PM ordered
MM to remove T1’s 14-Day Suspension at a Step 2 proceeding. She also identified a White female
Tour II employee, (T2) who was also supervised by another supervisor, contending that T2 had
six or more absences but was not disciplined; instead she was given scheduled and sick leave for
her absences. She asserted that T2 helped PM and performed duties that were not in her job
description; therefore, PM favored her by reworking her leave documentation. Complainant also
stated that T2 was being accommodated locally by reporting to work whenever she wanted without
calling the call-in number, and no discipline was issued for her absences by PM.

She also identified a White female coworker, (C1) who also had a different supervisor, and who
she was told had been sent a get-well card when hospitalized, but Complainant was sent a LOW,
asserting that C1 had not been disciplined like she was.

MM stated that, as Complainant’s manager/supervisor, he issued her the LOW, consistent with
applicable Agency rules, because of her unacceptable attendance. He asserted that Complainant
missed 120 hours of work. He explained that T1 was supervised by another supervisor; and she
was not treated more favorably, asserting that T1 had a LOW in her file and was issued a 7-day
Suspension, which she served.

He explained that T2 reported to the District office; and that he did not supervise or take care of
her attendance. He asserted that T2 held a different clerical position at that time and did not have
an attendance problem.

MM also explained that C1 had a Family Medical Leave Act (FMLA) condition and was given a
pre-disciplinary interview for her attendance, affirming that she reported to another supervisor.

PM stated that he was the concurring official for the LOW that was issued to Complainant. He
explained that he was the concurring official for two other suspensions in the last two years. He
asserted that a White female employee, (C3), was issued a LOW in 2009, a 7-Day Suspension in
February 2010, and a 14-Day Suspension for missing similar amounts of work due to unscheduled
absences. He also explained that he was the concurring official for a 7-Day Suspension issued to
a female Hispanic, (C4), for the same reason.

Issue #2

Complainant stated that she requested as an accommodation the ability to use of leave when
needed, a change of schedule when needed, and change of her job position to manual when needed
due to the medication side effects from her disability, i.e., her depression. She asserted that her
doctor requested the accommodation for a few months because her medications were being
adjusted. She stated that she requested an accommodation from PM and MLR; and that a meeting
was scheduled with the District Reasonable Accommodations Committee (DRAC).

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She alleged that PM and the Manager, Labor Relations, (MLR) denied the request, maintaining
that the reason given was that they were unable to locate a fully funded position within her
commuting area to accommodate her; and her request for liberal leave and change of schedule
accommodations would be disruptive to any work environment. She asserted that a White male
Mail Handler, (C2), who had another supervisor, was being accommodated with a change of
schedule from 30 minutes to 1 hour to go home and care for a disabled spouse; and was allowed
to report to work 4 hours late on Saturday nights.

MM explained that requests for reasonable accommodation were reviewed at the District level by
MLR and the local Plant did not act on the requests. He stated that Complainant’s medical
condition was depression, but he did not know if it was permanent or temporary; and that she made
him aware of her medical condition verbally and provided documentation. He also stated that
Complainant currently performed her duties and had been doing so since she submitted the
reasonable accommodation information to the District. He affirmed that Complainant requested a
reasonable accommodation and submitted the paperwork to the District; but he never saw the
paperwork. MM explained, and PM affirmed, that C2 took a one-hour lunch and returned, and
worked his full schedule, affirming that C2 reported to another supervisor. PM added that C2
often worked overtime.

PM stated that he did not become aware of Complainant’s medical condition until he received the
“subject” EEO complaint; and that she did not provide him with any medical documentation. He
asserted that Complainant was currently performing the essential functions of her position; and
that to his knowledge, her medical condition did not affect her ability to perform her work
assignment. He also stated that he did not know if her condition was permanent or temporary; and
that he did not consider her to have any work limitations.

PM asserted that Complainant’s accommodation request was denied by the DRAC, but he was
unaware of the reasons for the decision. He stated that MM held a Referral for Reasonable
Accommodation Consideration interview with Complainant, but she did not inform him of her
condition or request any reasonable accommodation at that time. He asserted that Complainant
stated she would bring in documentation after her scheduled doctor’s appointment; and that he was
unaware of the date that the DRAC met, but he was informed by MLR that Complainant’s request
was denied.

MLR affirmed that MM submitted a request for reasonable accommodations for consideration on
behalf of Complainant; and that on receipt, a request was sent to Complainant for medical
documentation. He asserted that once the medical documentation was received, an interactive
interview with Complainant was scheduled and conducted, explaining that Complainant went
through the interactive process in order to ensure that they understood the accommodations that
she was requesting.

MLR explained that Complainant requested that she be allowed liberal use of leave when needed
without consequences; to come to work late on days when she had episodes without consequences;
and to be able to work a different operation where there was a slower pace to allow her to recover
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when she had episodes. He affirmed that they did a job search for Complainant with those
restrictions and were unable to locate any work that would allow that type of attendance and still
maintain their efficiency. He asserted that they could and did allow Complainant to work the
slower operation when she had a need. MLR stated that Complainant’s request to come to work
when she felt depressed and be given a change of schedule when she was late would make it
impossible for her operation to plan their staffing needs; and that Complainant’s section had an
operational window, set up to avoid delaying mail, that required the completion of the workload
to avoid hardships on “downstream” operations.

He explained that they discussed with Complainant an accommodation that would move her
permanently to the Manual Operation, but she refused, stating she liked her job and did not want
to move. He asserted that Complainant requested to go to that operation only when she was in a
depressed state. He added that the permanent move to the Manual Operation was the only
accommodation offer made to Complainant. MLR explained that was the only accommodation
that could be made that would not create an undue burden on the operations of the organization
and cause delayed mail. He asserted that Complainant was sent a denial letter based on her failure
to accept the Agency’s offer to permanently move her to the Manual Operation.

Issue #3

Complainant alleged that MM issued her a 7-day suspension for Continued Unacceptable
Attendance - Continued Failure to Meet the Attendance Requirements of her Position. She
maintained that her chronic medical condition with severe episodes affected her ability to keep a
regular attendance, reiterating that she had provided management with her doctor’s medical
documentation. She explained that the 7-day suspension stated that the previously issued LOW,
and a 7-day suspension issued about a year earlier were deciding factors in the issuance of the
latest 7-day Suspension.

Complainant also maintained that the previous discipline, as stated, did not exist, asserting that
even if it did exist, it should not have been used as a deciding factor because discipline only stayed
on their record for two years. She added that the discipline was issued in an untimely manner.
She stated that T1 was treated more favorably because management removed her first 7-day
suspension for two absences at a Step 2 grievance, which left her with a LOW on file, asserting
that T1 was not being disciplined the same. Complainant also asserted that the alleged
management actions were taken in retaliation for her prior protected EEO activities.

MM asserted that, consistent with applicable Agency rules, Complainant was issued the 7-Day
suspension because she failed to be regular in attendance. He explained that the rule he relied on
to issue the discipline to Complainant addressed failure to meet the attendance requirements of her
position. MM stated that he was aware of Complainant’s prior EEO activity because she filed two
or three “EEOs” on the same issue in the past; and that he was the responsible management official
in her most recent complaint. MM asserted that T1 was not treated more favorably, stating that
she currently had a 14-Day Suspension in her file.

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PM stated that Complainant was issued a 7-Day suspension for unsatisfactory attendance by MM.
He explained that he had no role in the issuance of this discipline to Complainant, citing the
applicable regulations and sections of the Employee Labor Relations Manual (ELM) he relied on
to issue the discipline which, in pertinent part, provided that employees are expected to maintain
their assigned schedule and must make every effort to avoid unscheduled absences; and that
employees are expected to discharge their assigned duties conscientiously and effectively.

PM asserted that he became aware of Complainant’s EEO activity when he filled out an EEO
Investigative Affidavit in 2012; and that he was named by her as a responsible management official
or witness in her most recent complaint.

MM, PM, and MLR all asserted that Complainant’s national origin, disability and/or prior EEO
activity were not factors in their decisions.

Notably, the Agency stated in a supplemental investigation report that Complainant’s requests
would still be considered when she asked for schedule changes or leave but she wanted
management to waive the requirement to be regular in attendance which would negatively impact
business practices and needs.

CONTENTIONS ON APPEAL

Among other things, Complainant asserts that she effectively demonstrated sufficient facts to make
a prima facie case of discrimination as she has satisfied all the necessary requirements even if no
comparators exist, contending that she merely needs to show there is a causal connection between
membership in a protected class and the adverse action at issue in order to establish a prima facie
case. Complainant argues that she has established a prima facie case of retaliation by showing
prior EEO activity that management was aware of, subsequent adverse employment actions, and a
causal connection between the protected activity and adverse actions. She argues that the FAD
improperly relies on the lack of temporal proximity between her 2011 EEO complaint and the
alleged retaliation which occurred in December 2012.

Complainant also asserts that she has shown that the management’s stated legitimate,
nondiscriminatory reason for issuing the adverse actions is pretext for intentional discrimination.
She explains that she made every effort to maintain regular attendance and was only unable to
attend work according to her schedule because of complications with her episodic disability that
the Agency failed to accommodate or even engage in an interactive dialogue to attempt to
accommodate. She contends that she was not afforded an interactive engagement with the Agency
because there was only one offer made. Complainant requests that the FAD be overturned, and she
be afforded the opportunity to proceed with her claims.

In response, the Agency asserts, among other things, that its FAD finding no discrimination should
be affirmed because Complainant failed to establish a prima facie case and even if she did, she
failed to provide sufficient evidence that the Agency’s legitimate, non-discriminatory explanation
was pretext for discrimination.
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It explains that while appearing to allege there was no interactive process, Complainant admits
that she was offered a change in positions; and that she participated with the DRAC in an effort to
find work within her restrictions.

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

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He 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. 802 at
n. 13. 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, a complainant must prove, by a preponderance of the evidence, that the agency’s
explanation is a pretext for discrimination. 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 established a prima facie case of discrimination based on
disability, national origin, and reprisal; we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions as set forth in Issues #1 and #3. Regarding Issue #1, MM
explained that, consistent with applicable Agency rules, he issued Complainant the LOW because
of her unacceptable attendance after she had missed 120 hours of work due to unscheduled
absences over a two-months period. Regarding Issue #3, MM asserted, and PM affirmed, that
consistent with applicable Agency rules, Complainant was issued the 7-Day suspension because
she failed to be regular in attendance.

In an effort to show pretext, Complainant asserted that the management’s actions were motivated
by discrimination based on her national origin, disability and previous EEO activity. She identified
T1 as someone who, she maintained, had more absences than she did but received no discipline;
C1 who received a get-well card but no discipline; and T2 who also received no discipline but was
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given leave for her absences. However, MM explained that, unlike Complainant, C1 was on FMLA
Leave; and both T1 and Complainant were treated similarly in that they were both issued discipline
for having attendance deficiencies. The evidence also shows that after T1 served her suspension,
she was subsequently issued a 14-Day Suspension. Moreover, there is no evidence that
Complainant and C1 had comparable attendance records. C3, C4 and Complainant were also
treated the same in that they were all three issued suspensions for attendance deficiencies.
Management explained that the alleged actions were taken to address Complainant’s attendance
deficiencies; but noted that Complainant’s medically related requests were still be considered
when she asked for schedule changes or leave but she had to comply with the requirement to
be regular in attendance. Finally, we find no evidence that employees without prior EEO activity
were not disciplined for their attendance infractions.

Failure to Accommodate: Issue #2

Under the Commission’s regulations, a federal agency may not discriminate against a qualified
individual on the basis of disability and 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 reasonable accommodation would cause an undue hardship. See 29
C.F.R. § 1630.2(o), (p). To establish that she was denied a reasonable accommodation,
Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R.
§ 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m);
and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance on
Reasonable Accommodation”). An individual with a disability is “qualified” if he or she satisfies
the requisite skill, experience, education, and other job-related requirements of the employment
position that the individual holds or desires and, with or without reasonable accommodation, can
perform the essential functions of such position. 29 C.F.R. § 1630.2(m).

A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400
(2002) (“the word ‘accommodation’.. . conveys the need for effectiveness”). That is, a reasonable
accommodation should provide the individual with a disability with “an opportunity to attain the
same level of performance, or to enjoy the same level of benefits and privileges of employment,
as are available to the average similarly situated employee without a disability.” 29 C.F.R. pt.
6130 app. § 1630.9. If more than one accommodation will enable an individual to perform the
essential functions of his or her position, “the preference of the individual with a disability should
be given primary consideration. However, the employer providing the accommodation has the
ultimate discretion to choose between effective accommodations and may choose the less
expensive accommodation or the accommodation that is easier for it to provide.” Id.; see also
Enforcement Guidance on Reasonable Accommodation at Question 9. “The appropriate
reasonable accommodation is best determined through a flexible, interactive process that involves
both the employer and the individual with a disability.” 29 C.F.R. Part 6130 app. § 1630.9.
An “undue hardship” is a significant difficulty or expense in light of the agency’s circumstances
and resources. See 29 C.F.R. § 1630.2(p).
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The agency bears the burden of establishing, through case-specific evidence, that a reasonable
accommodation would cause an undue hardship. U.S. Airways, Inc. v. Barnett, 535 U.S.at 402.
“Generalized conclusions will not suffice to support a claim of undue hardship.” Enforcement
Guidance on Reasonable Accommodation, “Undue Hardship Issues.”

Assuming, arguendo, Complainant is a qualified individual with a disability, we find, based on the
totality of the record, that she has not established that the Agency denied her a reasonable
accommodation. The record indicates that management conducted a search for a position with the
restrictions that Complainant indicated, i.e., that she be allowed liberal use of leave when needed;
to come to work late on days when she had episodes; and to be able to work in manual operations
where there was a slower pace to allow her to recover when she had episodes, and were unable to
locate any work position that would allow that type of attendance. As an effective alternative, the
Agency offered to permanently reassign Complainant to the Manual Operation, but she declined.
Finally, although the Agency did not prospectively grant her request for liberal use of leave or
schedule changes, management continued to consider her requests on a case by case bases.
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 finding no discrimination
or retaliation as alleged.

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.
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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.

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, Director
Office of Federal Operations

August 20, 2019
Date