Ileen C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Apr 20, 2017

0120151843 (E.E.O.C. Apr. 20, 2017)

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

Ileen C.,1
Complainant,

v.

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

Appeal No. 0120151843

Hearing No. 430-2013-00373X

Agency No. 4K-230-0023-13

DECISION

On April 29, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s April 2, 2015, notice of final action 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 notice of final action
finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales,
Services/Distribution Associate in the Agency’s Hampton Post Office in Hampton, Virginia.

On March 1, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of sex and disability when:

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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1. In December 2011, Complainant submitted Prime Time leave slips for open
weeks; subsequently she was not informed that the deadline was over or allowed
to resubmit the leave slips;
2. On various dates from January 4 through May 29, 2012, her leave requests were
denied;
3. On January 7, 2012, she was assigned to work alone;
4. On February 9, 2012, she was not provided a clerk to relieve her from lobby
duty; and
5. Effective October 18, 2012, she was removed from the Agency.

The Agency issued a Partial Acceptance/Partial Dismissal of Formal EEO Complaint. The
Agency accepted issue (5) for investigation. The Agency dismissed issues (1) – (4) pursuant to
29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.

At the conclusion of the investigation on the accepted issue, 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 (AJ). Complainant
requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the
Agency’s motion for a decision without a hearing and issued a decision without a hearing on
March 25, 2015. The AJ noted that Complainant did not object to the Agency’s partial
dismissal. Thus, the AJ did not address the dismissed claims.

The AJ noted that Complainant sustained an on-the-job injury in 1994. As a result, the
Agency placed her on limited duty restrictions. In December 2010, the Agency informed
Complainant there was no work for her consistent with her job restrictions, based on her Duty
Status Report (CA-17) dated August 20, 2010, and sent her home. The AJ noted this occurred
as part of the National Reassessment Program (NRP).2

The AJ stated that by letter dated December 3, 2010, the Agency informed Complainant: “You
must update your medical documents (e.g., CA-17) on a regular basis as determined by your
treating physician. Upon receipt of all new or updated medical documentation, you are
required to immediately provide this documentation for review of the medical restrictions and a
new determination of available necessary tasks.”

The AJ noted on December 9, 2010, Doctor A (Orthopedist) stated that Complainant could
return to work full duty. However, Complainant did not notify the Agency of this information.

The AJ stated that although Complainant had been cleared by her doctor to work, she
submitted a CA-7 form for wage loss to the Department of Labor (DOL) for the period of
December 4, 2010 through January 14, 2011.

2 The AJ noted Complainant did not challenge the NRP decision to send her home.
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The AJ recognized Complainant had a Functional Capacity Evaluation (FCE) conducted on
March 21, 2011, related to continuing pain from 1994 injuries. The FCE demonstrated
Complainant could work in the Medium Physical Demand Level with restrictions on lifting.
However, Complainant did not notify the Agency of this information.

The AJ noted on April 29, 2011, Doctor B (Orthopedist) conducted an independent medical
examination and determined that Complainant could return to work with a lifting restriction of
30 pounds and no climbing. Complainant did not notify the Agency of this information.

The AJ noted on August 31, 2011, an investigation was commenced by a Special Agent, Office
of Inspector General (OIG). The Special Agent reviewed Complainant’s Facebook page,
where Complainant noted she engaged in activities including walking 3 to 5 miles, swimming,
hiking, traveling, baking, and cooking. The Special Agent interviewed Complainant’s doctors,
who concluded that Complainant could return to work with restrictions.

The AJ noted the Special Agent’s OIG Report also determined that Complainant had been
overpaid by DOL because she had received workers’ compensation during times she was able
to work, although she had not informed the Agency of this information. The OIG report
found:

Complainant received compensation that she was not entitled to from December 9, 2010
to February 18, 2011 and from April 21, 2011 to November 6, 2011. [Complainant]
was not entitled to this compensation because in December 2010 she had been notified
by her physician and DOL that she could return to work regular duty but she never
notified [the Agency]. Then in April 2011 she received new restrictions that would
have retuned her to work had she submitted the restrictions to [the Agency], as they
were the ones used to return her to work in November 2011.

The AJ noted that on November 3, 2011, the Agency notified Complainant that she was
required to return to work on November 7, 2011.

The AJ noted that on December 28, 2011, Complainant had another FCE. The evaluation
recommended the same work restrictions as those in March 2011.

The AJ noted that on April 24, 2012, the Postmaster conducted a Pre-Disciplinary Interview
(PDI) with Complainant concerning her failure to notify the Agency that she had been
medically cleared to return to work in December 2010 and April 2011.

The AJ noted that on September 5, 2012, the Agency issued Complainant a Notice of Removal
for Improper Conduct. The deciding official was the Postmaster. The Notice of Removal was
based on the findings of the OIG Report that Complainant had failed to provide the current
medical documentation indicating she could return to work, and received overpayment from
the DOL.

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The AJ noted Complainant filed a grievance, which was settled at Step 3. The Notice of
Removal was rescinded and Complainant was allowed to participate in the Agency’s Voluntary
Early Retirement Authority program.

The AJ determined the Agency articulated legitimate, nondiscriminatory reasons for the actions
at issue. The Agency submitted evidence that the Postmaster issued Complainant a Notice of
Removal based on the findings in the OIG Report that Complainant had failed to provide the
current medical documentation indicating that she could return to work, and received
overpayment of workers’ compensation from the DOL.

The AJ found Complainant presented no testimonial or documentary evidence sufficient to
establish a genuine issue regarding whether the Agency’s articulate reasons for its actions were
a pretext for discrimination based on her sex or disability. The AJ recognized Complainant
argued that Comparative 1, a male City Carrier, was treated more favorably than her. The AJ
noted Complainant claimed that Comparative 1 received overpayment of workers’
compensation, but he was not removed from employment. The AJ noted that the Postmaster
stated under oath she had no knowledge that Comparative 1 received overpayment from the
DOL. The AJ stated Complainant has not presented any sworn statements from other
witnesses, documents, or any other evidence that contradicts the affidavit from the Postmaster.

Moreover, the AJ noted Complainant compared herself to Comparative 1, a City Carrier,
while she was a Sales, Services/Distribution Associate. The AJ recognized Complainant and
Comparative 1 held different positions. Further, the AJ stated there was no evidence that
Comparative 1, like Complainant, was the subject of an OIG investigation, finding he engaged
in improper conduct. Thus, the AJ concluded Complainant and Comparative 1 were not
similarly situated.

The AJ noted Complainant also challenged the OIG Investigation and claimed it was based on
inaccurate facts and statements taken out of context. The AJ found that challenge was an
impermissible collateral attack on another proceeding. The AJ stated the proper place for
Complainant to have raised objections to the OIG Investigation would have been within that
process. The AJ stated it was inappropriate to now attempt to use the EEO process to
collaterally attack actions that occurred during the OIG Investigative Process.

The Agency subsequently issued a notice of final action on April 2, 2015. The Agency’s
notice of final action fully implemented the AJ’s finding 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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review “requires that the
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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”).

At the outset, we note that Complainant does not challenge the Agency's dismissal of issues (1)
– (4). The Commission has the discretion to review only those issues specifically raised in an
appeal. Accordingly, we will not address the dismissal of those issues. Moreover, we note
Complainant does not challenge the Agency’s definition of the issues in her complaint.

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no disputes of material fact.

Generally, claims of disparate treatment are examined under the tripartite 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, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to 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 Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of
the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v.
Department of Transportation, EEOC Request No. 05900159 (June 28, 1990).

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In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its
actions.3 The Agency issued Complainant a Notice of Removal based on the findings of the
OIG Report that Complainant had failed to provide current medical documentation indicating
that she could return to work, and received overpayment of workers’ compensation from DOL.

Complainant failed to proffer probative evidence showing management’s decision to issue the
Notice of Removal was a pretext for discrimination. Moreover, we note Complainant failed to
show that she was treated differently than any similarly situated comparative. With regard to
Complainant’s challenge to the OIG investigation, we find such a challenge to constitute an
impermissible attack on the OIG process. Upon review, we find Complainant failed to show
the Agency’s actions were motivated by discriminatory animus.

CONCLUSION

Accordingly, the Agency’s notice of final action 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

3 For purposes of this decision, we assume Complainant is a qualified individual with a
disability.
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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

April 20, 2017
Date