Harmony E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Dec 21, 2016

0120143099 (E.E.O.C. Dec. 21, 2016)

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

Harmony E.,1
Complainant,

v.

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

Appeal No. 0120143099

Agency No. 4W-047-0001-14

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated July 15, 2014,
finding no discrimination with regard to her 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, we AFFIRM the
Agency’s final decision finding no discrimination.

BACKGROUND

In her complaint filed on January 24, 2014, Complainant alleged discrimination based on race
(Black), sex (female), age (58), disability (leg, knee, ankle, and emotional stress), and in
reprisal for prior EEO activity when she was subjected to a hostile work environment in that:

(1) On September 17, 2013, management forced her to go through the District Reasonable
Accommodation Committee (DRAC) process, wherein she was treated in a hostile
manner, even though she had already been provided accommodations for the position of
Mail Recovery Clerk;

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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(2) On September 17, 2013, her supervisor (S1) and manager were allowed to be a part of
the DRAC wherein they were permitted to review her medical documentation;

(3) On October 21, 2013, she received a letter from her manager advising her that the
Form CA-17 she submitted on October 3, 2013, was unacceptable and that she needed
to provide acceptable medical documentation within 5 days;

(4) On unspecified dates, management was untruthful when responding to her inquiries
about positions at the Sales Call Center housed in the Atlanta Processing and
Distribution Center (P&DC);

(5) On unspecified dates, her “Return to Work” letter was shown to several management
officials, including temporary (204-B) supervisors, who shared the information with her
coworkers;

(6) On an unspecified date, S1 moved her work area (including a special chair, mat, and a
foot rest that had been provided as accommodations) from the “checkroom assignment
area” to the workroom floor in an area where rat feces had been found;

(7) She was denied reasonable accommodation when she was not allowed to use a cane on
the workroom floor and instead was instructed to use a u-cart as a support device; and

(8) In mid-October, S1 informed a management official with whom she had a job interview
that she had a doctor’s appointment that day.

After completion of the investigation of the complaint, Complainant did not request a hearing.
The Agency then issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its actions, which Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
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reasons for the alleged incidents. At the relevant time period at issue, Complainant was a
Clerk, PS-6, at the Agency’s Mail Recovery Center, Atlanta, Georgia. We note that
Complainant did not provide an affidavit to the Agency Investigator as requested.

Complainant claimed that she had her first on-the-job injury on her cervical, lumbar, shoulder,
and right ankle on December 29, 2000; she was reinjured on April 16, 2009; was injured on
January 13, 2010; and she reached Maximum Medical Improvement. S1 stated that the
essential functions of Complainant’s Mail Recovery Center Clerk position included the
following: typing checks; running 40 to 51 machines; culling letters, flats, books, and parcels;
and working in the break room area, which required the loading and unloading of trucks and
containers. The record indicates that in her position, Complainant was required to: lift/carry
20-50 pounds; sit, stand, walk, bend, stoop, twist, grasp, have fine manipulation, reach above
her shoulder, and operate machinery for 8 hours per day, continuously and intermittently.
Complainant claimed that she was not able to perform her position duties due to her
limitations.

The record indicates that on July 2, 2013, Complainant submitted to the Agency her Status
Report, Form CA-17, wherein which her physician indicated that beginning July 2, 2013, she
was able to perform full-time duties, 8 hours per day, “sit + stand as needed only
restrictions.” The record also indicates that on August 20, 2013, Complainant submitted to the
Agency a letter from her “psychologist” stating that she was capable of returning to her
position as a Mail Recovery Center Clerk in an accommodated position of four hours per day;
but, she was not able to perform the essential functions of her duties including the following:
operating equipment to process undeliverable and non-returnable mail; participating in periodic
auctions of unclaimed and undeliverable mail; loading/unloading trucks; breaking down mail;
and working on parcel belts in the dock area. However, there is no evidence that Complainant
submitted to the Agency any medical documentation indicating her specific physical limitations
while performing her duties.

With regard to claims (1) and (2), Complainant’s supervisors and manager indicated that she
was not forced to attend a DRAC meeting; rather it was voluntary and she was asked and
agreed to attend the meeting. Complainant attended the meeting with her union representative.
S1 stated that they were invited to attend the DRAC meeting and it was not unusual to invite
supervisors to a DRAC meeting as they must be aware of the DRAC committee’s decisions
when accommodations were recommended. S1 noted that Complainant had been out from her
work since September 20, 2012, and when her claim with the Department of Labor was
denied, she was told to return to work. When she reported to work on August 31, 2013,
Complainant asked her manager to be allowed to work only four hours each day and permitted
to sit for all four hours while she worked bulky mail, 3760’s, and wallets. The manager stated
that Complainant was allowed to do such work on a temporary basis and Complainant was
asked to provide supporting medical documentation. Complainant, however, failed to provide
the Agency her medical documentation as requested.

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With regard to claim (3), S1 indicated that on October 21, 2013, S1 issued Complainant the
letter at issue because the Form CA-17 she submitted was unacceptable and indicated no
restrictions. The record indicates that in the Form CA-17 at issue, Complainant’s physician,
other than signing and dating the form, did not fill out anything on the physician side of the
form, i.e., effectively indicating no restrictions despite her need for accommodation.

With regard to claim (4), the Manager, Health and Resource Management, denied she was
untruthful in September 2013, when responding to Complainant’s inquiries about positions at
the Sales Call Center. The Manager indicated that at the relevant time, she was unsure of the
opening date of the Center which opened later in December, 2013.

With regard to claim (5), S1 indicated that S1 and Complainant’s other supervisor were given
her “Return to Work” letter from the Injury Compensation Specialist. S1 denied the letter was
shown to other managers or temporary supervisors or coworkers. Complainant did not identify
any coworkers who allegedly knew of Complainant’s confidential medical information.

With regard to claim (6), S1 indicated that Complainant had been working in the checkroom
area but the volume in the checkroom had increased and there was a need to use the computer
that was designated for the processing of checks. Since Complainant was not using the
computer, stated the supervisors, she was moved to the work room floor with her special
chair. The supervisors noted that there was no Agency policies concerning where an employee
could work, and employees in the Mail Recovery Center were required to work in any areas
within the facility as instructed by their supervisors. S1 also stated that there was never a
special foot rest or mat for Complainant’s personal use, and denied there were rat feces in the
work room floor. Complainant provided no evidence she had the accommodation she claimed
regarding the foot rest or mat.

With regard to claim (7), S1 denied telling Complainant or anyone to use a u-cart as a support
device. But, S1 acknowledged telling Complainant that the cane could be considered a safety
hazard because employees could trip over it. S1 stated that Complainant voluntarily decided to
use the u-cart without asking anyone and when she was asked to provide documentation
showing her need to use the cane, she failed to provide such documentation. S1 indicated that
Complainant never requested the accommodation to use a cane on the workroom floor.
Complainant provided no evidence that she requested such an accommodation.

With regard to claim (8), Complainant claimed that she was given an interview opportunity for
a detail assignment in Consumer Affairs by S1 but S1 informed a managerial
official/interviewer that she had a doctor’s appointment that day. S1 acknowledged that S1
advised the official that Complainant had an appointment because the official was trying to
schedule a time to interview her after S1 recommended her for the detail. S1 indicated that the
official contacted S1 the following day and told S1 that she was looking for someone who
could work eight hours per day and Complainant informed her that she could only work four
hours per day. S1 stated that S1 apologized and told the official that S1 recommended
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Complainant for the position because she believed that Complainant was capable of working
eight hours.

Assuming (without deciding) that Complainant was an individual with a disability, the
Commission finds that Complainant failed to show that she was denied a reasonable
accommodation or that any Agency actions were motivated by discrimination. Complainant
does not allege that she was required to perform her duties beyond her medical restrictions.
We also find no evidence of any release of confidential medical information. With regard to
her claim of harassment, we find that Complainant failed to establish the severity of the
conduct in question or that it was related to any protected basis of discrimination. After a
review of the record, we find that Complainant failed to show that there were any similarly
situated employees not in her protected groups who were treated differently under similar
circumstances.2

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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.
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. The requests 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

2 On January 6, 2014, Complainant retired on disability from her employment at the Agency.
This is not at issue in this appeal.

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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 (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

December 21, 2016
Date