Dayle H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Nov 16, 2018

0120171136 (E.E.O.C. Nov. 16, 2018)

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

Dayle H.,1
Complainant,

v.

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

Appeal No. 0120171136

Agency No. 1C-371-0016-16

DECISION

On February 3, 2017, 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
January 5, 2017, 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 Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the Agency’s final decision (FAD), erred when it found that
Complainant did not prove that she was subjected to discrimination when she was not granted
overtime or holiday time.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the
Agency’s Memphis Processing and Distribution Center in Memphis, Tennessee. As a result of an
injury to her right foot/ankle, since 2014, Complainant has worked as a limited duty employee.

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.
0120171136

2
Complainant maintained that she was on the overtime desired list and was originally allowed to
work overtime. Thereafter, however management decided that she would no longer be allowed to
work overtime or holiday time. She maintained that other workers who were also on limited duty
were allowed to work overtime/holiday but she was not. Complainant also indicated that she filed
a grievance regarding this issue but the matter was held in abeyance pending her EEO complaint.
Additionally, she noted that she and the Agency had come to an agreement about this issue but the
Agency changed its mind because they did not want to pay her what she requested.

On March 18, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of sex (female), disability (posterior tibial tendonitis), and reprisal for
prior protected EEO activity when:

1. From a date to be specified in October 2015 and continuing, she was denied
overtime opportunities; and
2. From a date to be specified in October 2015 and continuing, she has been denied
holiday work.

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. 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 FAD concluded that Complainant failed to prove that
the Agency subjected her to discrimination as alleged.

The Agency indicated that assuming, arguendo, Complainant established a prima facie case of
discrimination as to all of her bases, it articulated legitimate, nondiscriminatory reasons for its
actions, namely, that Complainant was originally allowed overtime and holiday work because she
came in earlier than her shift and was allowed to work overtime. Management indicated that upon
review of her Form CA-17, which limited Complainant to working only eight hours a day, it was
realized that working overtime was beyond her restrictions. Moreover, the position that
Complainant worked did not offer overtime. Management indicated that previously, to help
Complainant with her requests for overtime, she was allowed to work outside the mail sorting area
if there was work within her restrictions but she was not allowed to work beyond her restriction of
eight hours. Complainant argued that her physician had cleared her for up to 12 hours of work as
long as she was sitting and the job was within her restrictions. The Agency argued, however, that
Complainant’s official Form CA-17 had not been changed, so she was limited to eight hours. The
Agency also found that only two of the comparators offered by Complainant were similarly
situated to her and even then, they had different limitations. The Agency found that Complainant
did not demonstrate that its reasons were pretext for discrimination, nor did she establish that she
was subjected to discrimination.

0120171136

3
CONTENTIONS ON APPEAL

On appeal, Complainant, contends among other things, that she should have been allowed
overtime/holiday time because she was on the overtime list and that there were jobs that she was
able to perform. Complainant also argues that the Agency erred in finding that the comparators
offered by her were not similarly situated. Complainant requests that she be compensated for all
of her lost overtime.

The Agency requests that its FAD be affirmed because while Complainant disagrees with the
Agency’s finding, she has not provided any evidence which shows that its articulated reasons were
pretext for discrimination.

ANALYSIS AND FINDINGS

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”).

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show 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);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

0120171136

4
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume, arguendo, that Complainant
established a prima facie case of discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for it actions, namely, that Complainant was not allowed to work
overtime because it was outside of her Form CA-17 restrictions. Complainant was only allowed
to work eight hours a day. While Complainant maintained that her physician approved her to work
twelve hours if she was sitting and the work was within her restrictions, we find that Complainant
did not show that her Form CA-17 had been updated to reflect these changes. Upon review, we
find that Complainant did not show that the Agency’s reasons were pretext for discrimination.
With respect to Complainant’s allegations on appeal, we find that other than her conclusory
statements, she has not provided any evidence which demonstrated that the Agency’s actions were
based on her protected bases or that discriminatory animus was involved.

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not demonstrate
that she was subjected to discrimination.

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.
0120171136

5
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

November 16, 2018
Date