Janet B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 15, 20180120151126 (E.E.O.C. Feb. 15, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janet B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120151126 Agency No. 4E-852-0026-14 DECISION On February 3, 2015, 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 December 31, 2014, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973, as amended (Rehabilitation Act), 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. § 621 et seq. Our review is de novo. For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Post Office in Bullhead City, Arizona. On February 18, 2014, Complainant filed an EEO complaint wherein she claimed that the Agency subjected her to a hostile work environment on the bases of her race (Caucasian), sex (female), disability (physical and mental/obsessive-compulsive disorder and anxiety), age (56) 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. 0120151126 2 and in reprisal for her prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act. The Agency framed her claims as follows in its final decision: 1. On October 9, 2013, a Supervisor screamed at her about her Family Medical Leave Act (FMLA) leave slip, denied her FMLA request but later approved it. 2. On October 18, 2013, Complainant was given a fact finding [investigative interview] on the Edit book and FMLA. 3. On various dates in October 2013, management charged her with unscheduled FMLA leave without pay (LWOP) instead of sick leave. 4. On October 25 and 28, 2013, Complainant was bypassed for overtime. 5. On November 23, 2013, Complainant was issued a Letter of Warning dated November 22, 2013. 6. On December 13, 2013, management stated, “I’ll put you through the District’s Reasonable Accommodation Committee” (DRAC) and, “Put that in your EEO.” 7. On November 14, 2013, Complainant had to use trays and could only use two tubs. 8. On November 14, 2013, management clocked her out at noon on her card but clocked her out at around 10 a.m. in timekeeping. 9. On an unspecified date, Complainant was denied overtime and worked in the dark. 10. On December 11, 2013, someone took away Complainant’s personal supplies. Complainant claimed discrimination on the bases of her age, sex, and disability when: 11. On or about January 10, 2014, Complainant was given an instruction sheet and told she walked deliberately slow. 12. On an unspecified date, Complainant’s medical information was mentioned. 13. On February 13, 2014, Complainant’s need for reading glasses was mocked and she was told she could not use them on the street. Complainant claimed discrimination based on her mental disability and reprisal when: 14. From March 13 through March 15, 2014, Complainant was sent to the carrier academy for new employee training. 0120151126 3 15. On unspecified dates, Complainant was issued discipline. 16. On unspecified dates, Complainant had been subjected to excessive street scrutiny and management changed her case and route order. 17. On an unspecified date, Complainant was forced to drive back on her day off (Sunday) and was not paid for eight hours at the overtime rate. Complainant claimed discrimination based on her age, sex, disability, and reprisal when: 18. On April 14, 2014, Complainant was informed by a coworker that the Supervisor asked the coworker to write or sign a statement on April 10, 2014, saying that Complainant was a threat. 19. On an unspecified date and ongoing, Complainant’s Supervisor conducted a street observation on her but failed to provide her with documentation. 20. On an unspecified date and ongoing, Management gave off Complainant’s mailroom delivery at Silver Creek as a swing to other employees. Complainant claimed discrimination based on her disability and reprisal when: 21. On May 1, 2014, Complainant became aware that a hostile work environment investigation report found no hostile work environment existed. 22. On unspecified dates and ongoing, Complainant had been harassed and offended by the Manager of Human Resources and others insisting that she attend the District’s Reasonable Accommodation Committee (DRAC) meetings. 23. Management singled out Complainant when it submitted her name to the DRAC, but she was never informed of who submitted her name to the DRAC or the reasons behind it. 24. On unspecified dates and ongoing, Complainant had been harassed by the constant Employee Assistance Program (EAP) referrals and information offered to her. Complainant claimed discrimination based on her disability and reprisal when: 25. On July 17 and 18, 2014, management sent her hostile letters scheduling her for a Fitness-For-Duty Examination on July 31, 2014, and instructing her to stay off Agency premises until informed otherwise. 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 0120151126 4 Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency determined that Complainant failed to prove that it subjected her to discrimination as alleged.2 The Agency found that Complainant had prior protected EEO activity, in that she had filed several previous EEO complaints. With regard to Complainant’s disabilities, the Agency stated that Complainant has had two shoulder surgeries and has permanent restrictions. Complainant stated that she has carpal tunnel syndrome of the right hand, wrist and forearm. Complainant also claimed to have permanent conditions of obsessive compulsive disorder (OCD) and chronic anxiety with relevant Agency officials being aware of her disabilities. According to Complainant, medical documentation provided in January 2014 indicates that she is restricted to no lifting over 50 pounds, no casing over the shoulder, no overhead lifting of five pounds and she is to use tubs, not trays. Complainant maintains that she has lost the use of her right shoulder, cannot perform some manual tasks with her right hand, wrist and forearm because she has three numb fingers, and she has difficulty in her ability to concentrate, learn, or perform manual tasks. With regard to claim (1), Complainant claimed that the Supervisor, Customer Service, screamed at her about her FMLA sick leave slip, saying to bring in medical documentation, “Just go to any doctor and get it.” Complainant maintained that she had previously asked if she could get the documentation on her next visit to her physician and was told she could. Complainant asserted that the incident caused her to suffer humiliation, embarrassment and tremendous anxiety. As for claim (2), Complainant stated that the Acting Supervisor issued her an investigative interview and told her she did not have permission to work on her edit book. Complainant claimed that she did not need permission because it was part of her job and she was required to submit the edit book at least once a month. The Agency pointed out that Complainant maintained that the Supervisor, Customer Service, told her to work on the edit book that week because she was unable to submit it before it was due. In terms of claim (3), Complainant stated that she began to be charged with unscheduled FMLA leave without pay instead of sick leave. The Agency noted that Complainant had 6.16 hours of sick leave on October 4, 2013; eight hours of sick leave on October 10, 2013; 6.20 hours of leave without pay on October 30, 2013; and eight hours of leave without pay on October 31, 2013. With respect to claim (4), Complainant stated that on October 25 and October 28, 2013, another employee took part of her route on overtime. 2 Initially, the Agency noted that two additional claims not referenced above were previously dismissed on procedural grounds in a decision of April 8, 2014, and incorporated that dismissal in the present decision. Since Complainant does not challenge that dismissal on appeal, we will not address it further herein. 0120151126 5 With regard to the Letter of Warning at issue in claim (5), Complainant was charged with Violation of Agency Standards of Conduct. Complainant had been told by the Supervisor, Customer Service not to tub certain mail and to tub other mail and Complainant allegedly responded by yelling to the union steward across the workroom floor about the Supervisor’s instruction. The matter at issue in claim (6) concerned another Supervisor, Customer Service (SCS2) allegedly telling Complainant “I’ll put you through the District’s Reasonable Accommodation Committee,” and “Put that in your EEO.” Complainant claimed that the SCS2 kept threatening her with that statement. Complainant also claimed that management kept threatening to change her case and she went home sick that day due to anxiety. With regard to claim (7), Complainant claimed that the Supervisor, Customer Service, instructed her that she was to utilize trays and was only permitted to use two tubs. Complainant argued that she had instruction sheets from the SCS2 with conflicting numbers of tub usage. Complainant stated that such micromanagement caused her humiliation on the workroom floor. As for claim (8), on the same day as the matter at issue in claim (7), Complainant claimed that she felt nauseous and her anxiety was raised by her Supervisor’s treatment. Complainant maintained that she was in and out of the rest room and would periodically resume casing. According to Complainant, she was instructed to leave at noon and she clocked out at noon, but management changed her time to 10 a.m. Complainant stated that she was told by the SCS2 that she had abandoned her route. The Agency stated that Complainant had two hours work, six hours leave without pay in lieu of sick leave, and .41 union steward time. With respect to claim (9), Complainant stated that she requested overtime and it was denied without explanation. Complainant stated that this resulted in her working in the dark. According to the Agency, Complainant requested overtime on 48 days between January 2, 2014 through April 30, 2014. The Agency stated that requests were approved for small amounts of overtime on occasion, approved for auxiliary assistance on occasion, and disapproved on 25 days. In terms of claim (10), Complainant maintained that personal supplies were taken from her case. Complainant stated that she reported the missing items to management but no one could assist her. The Agency noted that Complainant failed to provide supporting evidence of the lost items and did not submit the claim in a timely fashion, and therefore her claim for personal property was denied. With regard to claim (11), Complainant claimed that both Supervisors, Customer Service issued her an instruction sheet and told her that she walked deliberately slow. Complainant asserted there is no pace required of a carrier to walk. The Agency stated that the instruction sheet indicated that Complainant demonstrated no sense of urgency and appeared to be pacing herself on the street in February 2013 and October 2013. The Agency noted that Complainant claimed this was due to her hemorrhoids. As for claim (12), Complainant stated that on the date she received the instruction sheet, the SCS2 mentioned her hemorrhoids in writing and aloud with others in the room. Complainant asserted that anytime she reports something, management 0120151126 6 dismisses it and makes a joke of the matter. The Agency stated that the instruction sheet informed Complainant she must provide medical documentation supporting her claim as to why she could not perform her duties. With respect to claim (13), Complainant contended that the Supervisor, Customer Service, and an Acting Supervisor, Customer Service, mocked her need for reading glasses. Complainant asserted that she received a direct order telling her that she could not use her reading glasses. Complainant stated that the SCS2 declared that it was wasting time and that she should use only one pair of glasses. The Agency noted that Complainant’s Individual Training Record based on observation reflected that Complainant removed sunglasses and then put on reading glasses and continued to repeat this process, but does not use reading glasses in the office. In terms of claim (14), Complainant maintained that she was sent to the carrier academy for three days for new employee training. Complainant argued that she has 26 years of experience with the Agency and was not provided with a reason as to why she had to attend. Complainant stated that she was the only city carrier ever to be sent to this training. The Agency stated that Complainant attended standard training for city letter carriers for three days. With regard to claim (15), Complainant claimed that she was issued three Letters of Warning, one of which is the Letter of Warning referenced in claim (5). Complainant stated that no one else has been issued discipline or given direct orders like she has been given. The Agency stated that the two Letters of Warning not previously discussed concerned a Letter of Warning dated March 21, 2014, for not wearing a scanner holster as instructed, and a Letter of Warning for failing to submit a PS Form 3996 when instructed. As for claim (16), Complainant claimed that the Supervisor, Customer Service, and the Acting Supervisor, Customer Service, scrutinized her excessively on the street and at her case since May 2012. Complainant further claimed that these management officials and the Postmaster took away a piece of equipment thus altering her case on December 20, 2013. Complainant stated that both Supervisors denied altering her case. Complainant also claimed that on April 3, 2014, her route order was changed and she was not informed prior to the change. Complainant argued that management altered her case despite knowing that this action breached an EEO settlement agreement. According to the Supervisors, the case was not altered but rather consolidated, and the carrier shelves were never moved. With respect to claim (17), Complainant argues that she was required to drive back from the carrier academy on her day off but that she was not paid overtime for the travel day. The Agency stated that Complainant was paid for five overtime hours that day rather than the eight hours sought by Complainant. In terms of claim (18), Complainant stated that she was being targeted by the Acting Supervisor, Customer Service. According to Complainant, a coworker informed her that the Acting Supervisor, Customer Service, asked her and several others to write a statement or sign a statement saying Complainant is a threat. 0120151126 7 With regard to claim (19), Complainant asserted that four street observations of her were conducted in January and February 2014, by the Supervisor, Customer Service, and the Acting Supervisor, Customer Service. Complainant stated that she asked for copies of their notes but the Supervisor, Customer Service, told her they did not have to give them to her. The Agency stated that an Observation Report for January 31, 2014, showed no infractions and an Observation Report for February 21, 2014, indicated that Complainant was given instruction about the use of her hazard lights. As for claim (20), Complainant claimed that on various dates, the Acting Supervisor, Customer Service, gave off the mailroom delivery at Silver Creek as a swing for other employees, and when asked why by Complainant, told her because she can. With respect to claim (21), Complainant claimed that she learned that a hostile work environment report concluded that her claims were unfounded. In terms of claim (22), Complainant asserted that she was harassed by Human Resources and other officials to attend DRAC meetings. According to Complainant, she attended the first DRAC meeting but only to learn who nominated her and why she was nominated. Complainant did not attend subsequent meetings. According to the Agency, on February 5, 2014, the Supervisor, Customer Service, sent Complainant a notice that she was scheduled for a DRAC meeting on February 20, 2014, due to repeated comments she made about her disability. Several other letters were sent to Complainant for the purpose of requesting medical documentation regarding her limitations, requesting her presence at a DRAC meeting, or requesting that she participate in the interactive process through DRAC. Claim (23) concerns Complainant being singled out when her name was submitted to DRAC and she was not informed of who submitted her name. The Agency noted that Complainant believed the SCS2 submitted her name but that the other Agency management officials also singled her out. With regard to claim (24), Complainant stated that Agency management officials harassed her when they urged her to use the EAP program. Complainant stated she considered it insulting since it indicated they thought she was a person in need. According to Complainant, the EAP program was mentioned every time she was brought into a supervisor’s office. As for claim (25), Complainant claimed that on July 17, 2014, a Human Resources official sent her a letter scheduling her for a fitness-for-duty examination on July 31, 2014. A July 18, 2014 letter from the Supervisor, Customer Service also addressed the fitness-for-duty examination. Complainant stated that the letters instructed her to stay off the Agency premises until further notice from management, that she was in an off-duty status and that her attendance was mandatory, and that failure to appear and cooperate could subject her to serious disciplinary action, including termination of employment. Complainant maintained that she never refused to provide medical documentation. The Agency stated that the July 18, 2014 letter from the Supervisor, Customer Service, explained that the reason for the examination was in response to her observed behaviors in the workplace, her repeated claim of a mental disability, and her repeated refusal to provide medical documentation with regard to her claimed medical condition. The Agency determined that Complainant failed to set forth a prima facie case of reprisal as to claims (1-20). The Agency stated that the temporal proximity was insufficient given that the last 0120151126 8 contact of management officials in Complainant’s most recent prior EEO activity occurred on March 28, 2013, and the first alleged discriminatory action in the instant complaint occurred in October 2013. The Agency stated that temporal proximity exists for claims (21-25) since Complainant contends that the reprisal occurred based on the instant complaint. As to Complainant’s claim of disability discrimination, the Agency determined that Complainant has an actual disability within the meaning of the Rehabilitation Act. The Agency stated that it would assume without deciding that Complainant was substantially limited in the major life activity of lifting and of performing manual tasks. As to Complainant’s obsessive compulsive disorder and anxiety, the Agency noted that Complainant’s physician explained that Complainant tends to get anxious when things are out of normal routine and that she writes down numbers and counts when passing scan points. Additional documentation has noted that Complainant’s obsessive compulsive disorder is evidenced by her compulsive checking and hoarding that interferes with task completion. The Agency determined that Complainant was clearly qualified for her City Carrier position. The Agency noted that Complainant acknowledged she could not perform the essential duties of her position without an accommodation, but that she previously requested an accommodation, and after six months, parts of her request were granted. However, with regard to the matters at issue in the instant complaint, the Agency stated that Complainant did not request an accommodation. The Agency asserted that management was attempting to assist Complainant in obtaining a reasonable accommodation when she was referred to DRAC. The Agency rejected Complainant’s claim of disability discrimination noting that Complainant attended one DRAC meeting and then failed to provide the required medical information, and subsequently refused to attend further DRAC meetings. The Agency stated that only claims (3, 4, 5, 8, 9, 14, 15, 17 and 25) independently state a claim outside the harassment framework. The Agency analyzed these claims separately and determined that Complainant did not establish a prima facie case of discrimination under the alleged bases. The Agency stated that the individuals cited by Complainant were not adequate comparisons as they did not demonstrate similar misconduct, most did not have a medical condition, and there was nothing in the record to indicate if any of the comparisons requested overtime, worked any overtime, or were bypassed for overtime. The Agency determined that it articulated legitimate, nondiscriminatory reasons for its actions in these claims. With regard to claim (3), the Supervisor, Customer Service, stated that he does not remember what happened on the dates at issue, but in the past Complainant was charged with leave without pay because she did not provide the appropriate medical documentation. In terms of claim (4), the Agency noted that Complainant failed to identify the management official who bypassed her for overtime. A third Supervisor, Customer Service (SCS3), stated that if he has any carrier who was in under time, he would assign them any overtime from any carrier so that overtime would be minimized. With respect to the Letter of Warning at issue in claim (5), the Supervisor, Customer Service, asserted that he asked Complainant to lower her voice, but she 0120151126 9 refused and continued to yell for the union steward across the workroom floor concerning his instruction as to how she should be using her tubs when pulling down mail. As for claim (8), the Supervisor, Customer Service, stated that Complainant became aggravated and spent two hours in the restroom. The Supervisor stated that Complainant was instructed to come out of the restroom and that she was clocked out at noon after she left the restroom. The SCS2 explained that he spoke with Labor Relations on the matter and because Complainant abandoned her position and never returned to her bid job, he adjusted her end tour to 10:30 a.m. instead of noon. With respect to claim (9), the Supervisor, Customer Service, stated that he would approve or deny overtime based on mail volume and past performance. According to the Supervisor, all carriers are followed a few times per year on their route and that this is used to develop a base time that their routes take them to deliver. The Supervisor asserted that Complainant never came close to the times and would request overtime without her route having expanded or extenuating circumstances that would justify the need for overtime. The Supervisor denied being aware of Complainant ever working in the dark. In terms of claim (14), the Postmaster stated that he decided to send Complainant to training due to her numerous time-wasting practices as reflected in office and street observations and inspections. The Postmaster asserted that he considered it better for Complainant to receive her remedial training in a neutral environment given that she claimed the current on-the-job trainer was involved in creating a hostile work environment for her. As for claim (15), the Supervisor, Customer Service, stated that he issued the March 21, 2014 Letter of Warning based on Complainant’s unsatisfactory performance and failure to follow instructions. According to the Supervisor, the Acting Supervisor, Customer Service, conducted a street inspection and Complainant was not wearing her scanner and did not have it readily available as instructed. The other matter cited in the Letter of Warning concerned the Acting Supervisor requesting Complainant redo a request for overtime four times before Complainant complied with the request. With regard to claim (17), the Postmaster stated that both Complainant and a male employee also sent to training in Phoenix were required to drive back on Sunday March 16, 2014. The Postmaster noted that Complainant was paid for the allowed time spent to drive from Phoenix to Bullhead City. According to the Postmaster, the time allowed per the manual is approximately four hours and Complainant was paid accordingly. As for claim (25), the Postmaster asserted that he submitted Complainant for a fitness-for-duty examination based on advice from DRAC. The Postmaster stated that the recommendation was based on Complainant’s decline in performance, her repeated objection to following management’s instructions, and her statements that she suffers from disabilities that do not coincide with what was reviewed in the 2012 DRAC. Additionally, the Postmaster referenced Complainant’s refusal to provide medical documentation from her physician about her work restrictions and refusal to attend DRAC after the first meeting as reasons to keep her away from the workplace until the results of the fitness-for-duty examination. The Supervisor, Customer 0120151126 10 Service, asserted that Complainant had frequently claimed an anxiety issue with no supporting documentation. The Agency determined that Complainant failed to establish pretext with regard to these claims. With regard to claim (3), Complainant stated that she was charged with leave without pay because management was trying to force her out of her job and this happened to no one else. The Agency rejected this claim noting that medical documentation must state that she was unable or incapacitated from work due to her illness and/or her FMLA condition as is required for paid sick leave. The Agency stated that this documentation was not provided. With respect to claim (4), Complainant claimed that she was bypassed for overtime in favor of a younger man. The Agency denied this claim stating that management utilized any carrier in order to minimize overtime. As for the Letter of Warning at issue in claim (5), Complainant claimed that management disciplined her and no others. The Agency noted that Complainant claimed no one else was issued direct orders and management was constantly demeaning her mental disability. As for being clocked out at 10:00 a.m., Complainant charged that it was only done to her. However, the Agency pointed out that she did not produce evidence she was on the workroom floor and that she admitted she went into the restroom and periodically would come back to the floor to try to resume casing. Complainant argued as to being denied overtime and working in the dark that she was singled out for punishment to continue the daily harassment. Complainant stated that the younger male and female employees had already gone home. As for being sent to the carrier academy, Complainant maintained that she was the only city carrier ever to be assigned to this training and that in light of her 26 years of service, it was done to humiliate and embarrass her in order to force her out. With regard to being required to drive from Phoenix on her off day and not be paid eight hours at the overtime rate, Complainant claimed that the Postmaster is unhappy with her EEO settlements, her requests for reasonable accommodation, and the outcome of DRAC. As for being instructed to remain off duty pending the results of her fitness-for-duty exam, Complainant contended that it was reprisal and disability discrimination based on the threatening tone of the letters. With regard to Complainant’s hostile work environment claim, the Agency determined that management did not subject her to personal slurs or other denigrating or insulting verbal or physical conduct related to her protected groups. In terms of the claims that have not been addressed above, the Agency stated as to claim (1) that although Complainant stated that the Supervisor, Customer Service, screamed about her FMLA leave slip, and then denied it before subsequently approving it, the Supervisor denied knowledge of this situation and maintained that he never screamed at any employee. With respect to claim (2), the SCS3 stated that he did not recall the fact finding meeting at issue concerning Complainant’s edit book, but that any employee who works on any type of administrative work other than their regular work must first ask permission so that the supervisor is aware and then swipe the appropriate TACS code so the time can be accounted for properly. 0120151126 11 With regard to claim (6), the Agency stated that Complainant threatened management rather than the SCS2 threatening Complainant. According to the SCS2, Complainant commented “I am going to put that in my EEO,” after an angry outburst and slamming her fist on the table. As for claim (7), Complainant being told to use trays and no more than two tubs, the Agency stated that these instructions were issued by the Supervisor, Customer Service and SCS2, but that Complainant failed to follow the instructions and instead engaged in time wasting practices by placing about an inch of mail for each cluster box delivery in each tub. The Agency asserted that this resulted in Complainant utilizing a large amount of overtime. In terms of claim (10), Complainant’s missing personal supplies, the Agency stated that a search was undertaken for the items by three supervisors but they were unable to locate the items. The Agency noted that Complainant’s claim for the missing items was denied. With regard to claim (11), Complainant being given an instruction sheet and told she walked deliberately slow, the Supervisor, Customer Service, and the SCS2 stated that they did not know of Complainant being issued an instruction sheet concerning walking slowly. As for claim (12), Complainant’s medical information being mentioned, the SCS2 denied making the alleged comment. According to the SCS2, Complainant stated that “You probably noticed I am walking slow today since I have hemorrhoids.” The SCS2 maintained that he did not respond to that remark. In terms of claim (13), the Supervisor, Customer Service, and the SCS2 stated it was unsafe and time wasting for Complainant to switch between two sets of glasses at each delivery. With respect to claim (16), the Supervisor, Customer Service, asserted that the street observations of Complainant were conducted due to her poor performance and failure to make standards. The Supervisor stated that Complainant was engaging in many time wasting practices such as making excessive trips back and forth to unload her vehicle at cluster box stops, switching sunglasses to eyeglasses at each curbside delivery spot and not wearing her scanner as instructed. The Supervisor claimed that Complainant was also walking back and forth to her vehicle to scan parcels and other items and was not following instructions. The Acting Supervisor, Customer Service, cited the need for street observations in light of Complainant continuously submitting 3996s estimating an unjustifiable amount of overtime for her route. As for equipment being removed from Complainant’s case, the Postmaster asserted that the piece of equipment that was removed was superfluous and class labels were reviewed, consolidated and reinserted. The Postmaster explained that this was done to make Complainant more efficient as she had failed to make her office time in office inspections. With respect to the change in Complainant’s case, the Postmaster maintained that this was done because Complainant had complained that she was violating her shoulder restrictions due to the amount of mail on her top shelf. The Postmaster stated that he authorized a line of travel change that resulted in Complainant having a low mail residential portion of her route as her last shelf. With regard to claim (18), the Acting Supervisor, Customer Service, stated that a number of carriers came to her with their concerns for the safety of the workplace when Complainant is on the workroom floor. The Acting Supervisor asserted that she informed the employees they could express their concerns in writing but that she did not request the employees provide or sign a 0120151126 12 statement. According to the Postmaster, he received a dozen or so statements from various employees concerning Complainant, and that some employees believed Complainant posed some sort of threat. In terms of claim (19), the Supervisor, Customer Service, reiterated the reasons for conducting street inspections of Complainant and added that all carriers have street observations conducted on them at least two to three times per year to evaluate the base time of a route and to eliminate any time wasting practices. The Supervisor asserted that employees are not entitled to a copy of a supervisor’s personal notes as the findings are discussed with the carrier. The Acting Supervisor, Customer Service, stated that she conducted three street observations of Complainant within a three-week period and that she provided Complainant with a copy of her Observation of Driving Practices. As for claim (20), the Acting Supervisor explained that she has frequently pivoted portions of Complainant’s route based on the return time estimates that she submits. With respect to claim (21), the Manager, Human Resources, stated that she prepared the findings letter on Complainant’s claim of a hostile work environment. The Manager stated that the inquiry determined that Complainant’s concerns were not work environment issues but rather contractual matters for which she was seeking a remedy through the grievance procedure. As for claim (22), the SCS2 stated that he recommended Complainant to DRAC because she claimed that management cannot supervise her. According to the SCS2, Complainant mentioned an inability on her part to work or take instruction. According to the Manager, Human Resources, DRAC met with Complainant on February 20, 2014, but Complainant did not appear at the meeting on March 6, 2014. The Manager stated that she called Complainant on April 1, 2014, about appearing at a meeting but Complainant told her she did not appreciate her demanding that she meet with DRAC. The Manager stated that she told Complainant she was only calling to see if she was available and that DRAC wanted to continue the interactive process to see if there was an accommodation that could meet her restrictions. The Manager claimed that Complainant hung up on her. According to the Manager, Complainant subsequently informed DRAC in writing that she would not attend meetings that were scheduled in April and May 2014. The Manager noted that although Complainant did not appear, her union representative did attend a DRAC meeting on June 27, 2014. With respect to claim (23), the Agency pointed out that the SCS2 stated that he submitted Complainant to DRAC and the reasons why he did so. The Agency noted that Complainant acknowledged that she was subsequently informed as to who submitted her name. In terms of claim (24), Complainant’s claim that she was harassed by constant EAP referrals, the Supervisor, Customer Service, stated that during investigations he always asks the employee if they would like a referral to EAP. The Supervisor asserted that Complainant never reported to him that she was being harassed by the EAP referrals. The Agency noted that the other management officials were also named in this claim but that they stated they have no knowledge of this issue. In addition to determining that Complainant failed to establish that management used slurs, epithets or promoted stereotypes or engaged in any other discriminatory behavior based on Complainant’s protected classes, the Agency determined that there is no evidence that the 0120151126 13 conduct at issue was sufficiently severe or pervasive to create a hostile, abusive, or offensive work environment or unreasonably interfered with Complainant’s work performance. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency’s harassment has caused her to experience increased anxiety. Complainant claims that she was exceeding the medical restrictions on her shoulder, her case remained changed, her route order remained changed and she was also told to eat lunch early in the day, thus throwing off her patterns and eating schedule. Complainant states that her fitness-for-duty exam was in part based on remarks from coworkers. Complainant argues that she has never been a threat or a dangerous employee but several of her coworkers are, and they have not been sent for evaluation. Complainant maintains that the actions taken against her in the instant complaint are in retaliation for her May 2012 request for reasonable accommodation, the subsequent discrimination finding in the EEO complaint she filed,3 and the settlement that was reached in another prior complaint. ANALYSIS AND FINDINGS 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). She must generally establish a prima facie case by demonstrating that 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 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The prima facie inquiry may be dispensed with where, as here, the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson 3 The Commission determined that Complainant had been discriminated against when her request for reasonable accommodation was unnecessarily delayed, when management gave her instructions not allowing her to engage in certain behaviors they regarded as “time wasting,” when her Supervisor’s actions in changing Complainant’s routines and singling her out for harsher treatment showed an insensitivity to her medical condition and caused her significant and foreseeable anxiety sufficient to constitute a hostile work environment based on her disability (obsessive compulsive disorder), and when she was subjected to disparate treatment and retaliatory harassment. EEOC Appeal No. 0120140129 (March 25, 2014). The events in that complaint occurred between April and December 2012. 0120151126 14 Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant claims that she was subjected to harassment by management officials. To establish a claim of harassment 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 her statutorily protected classes; (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). Therefore, in order to establish her harassment claim, Complainant must show that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. As noted above, the Agency did not dispute that Complainant is considered a qualified individual with a disability covered under the Rehabilitation Act. She also has engaged in prior EEO activity on multiple occasions. We shall assume arguendo that Complainant has set forth a prima facie case of reprisal. Complainant was 56 years old when the alleged discrimination commenced and is thus covered under the ADEA. She is also a member of protected groups for her sex and race. It is also evident that Complainant regarded the alleged actions as unwelcome. We find that Complainant has established elements (1) and (2) of her claim of harassment. We observe that the record contains a letter dated December 21, 2006, from Complainant’s psychologist which states that Complainant has obsessive-compulsive disorder, and that as a result she tends to get anxious when things are out of normal routine. In a letter dated August 22, 2012, the same therapist stated that Complainant’s disorder results in her continually checking and rechecking if she completed tasks. The record also contains a Certification of Health Care Provider For Employee’s Serious Health Condition (Family and Medical Leave Act) dated December 10, 2012, wherein the therapist wrote that Complainant has functioned well for over twenty years working for the Agency but she reports that she has been directed to make changes with which she is struggling. The therapist stated that Complainant developed strategies to successfully deliver the mail but that someone with obsessive compulsive disorder struggles with change. 0120151126 15 We find that Complainant has not established a claim of harassment as to the incidents in claims (1-6), (8-10), (12), (15), (17) and (19-24), as we find that those incidents were not based on any of Complainant’s statutorily protected classes. We also find that the Agency presented legitimate, nondiscriminatory reasons for its actions in each of those claims and Complainant failed to produce evidence to establish that these reasons were pretext intended to hide discriminatory motivation. However, we find that as to claims (7), (11), (13), (14), (16), and (18), Complainant has established that the Agency’s actions were based on her disabilities and that the actions were severe or pervasive enough to create a hostile work environment. With regard to claim (7), being told by the Supervisor, Customer Service, to use trays and that she could only use two tubs, we find that Agency officials were aware of Complainant’s disability and restrictions involving her shoulder. Complainant was not supposed to use trays and she used several tubs to keep them from getting too heavy since she had undergone surgeries on her shoulder. Complainant stated that using trays caused her shoulder to stretch out away from her body instead of lifting a tub. The Agency explained that this instruction was intended to correct a time wasting practice. However, we find that the Agency’s instruction to Complainant to only use two tubs constituted harassment toward Complainant on the basis of her disability. With respect to claim (11), this claim involves Complainant receiving an instruction sheet and being informed that she walked deliberately slow. We note that the Supervisor, Customer Service, and the SCS2 stated that to their knowledge Complainant was not given an instruction sheet about walking slowly. However, the record contains an instruction sheet dated January 10, 2014, from the Supervisor, Customer Service, to Complainant that includes remarks such as Complainant displayed no sense of urgency and appeared to be pacing herself on the street. Another comment was that Complainant is reminded of her responsibility to make one move into a mailbox and is not to check her LLV and check and recheck doors and windows. An additional remark was that Complainant goes in the case seven to eight times before she cases a flat, that this was observed on several occasions, and that this is to cease immediately. Another statement was that Complainant is allowed one minute and is instructed to take that one minute daily to check to make sure she has all her DPS. Complainant is to check the first piece of each tray and once somewhere in the middle of each tray to confirm she has all her DPS. Claim (13) concerns Complainant being mocked about her switching from sunglasses to eyeglasses while delivering her route and her being told by the Supervisor, Customer Service, and the SCS2 not to wear her eyeglasses on the street. The Agency officials considered Complainant’s routine to be a time wasting practice. We find that these claims reflect the Agency’s insensitivity toward her obsessive compulsive disorder and the Agency’s actions constitute harassment against Complainant based on her disability. Claim (14) involves Complainant being sent to the carrier academy for new employee training. This measure was undertaken despite the fact that Complainant had 26 years of experience with the Agency. Claim (16) involves Complainant being subjected to excessive street scrutiny and 0120151126 16 management changing her case and route order. The record reveals that the Supervisor stated that the street observations were undertaken because Complainant was engaging in many time wasting practices such as making excessive trips back and forth to unload her vehicle at cluster box stops, switching sunglasses to eyeglasses at each curbside delivery spot, and not wearing her scanner as instructed. The Supervisor claimed that Complainant was also walking back and forth to her vehicle to scan parcels and other items and was not following instructions. Complainant claimed as to her case being changed that the piece of equipment that was taken affected her shoulder level as she is working outside of her restrictions when the section becomes full. Claim (18) concerns Complainant claiming that she was informed by a coworker that the Acting Supervisor, Customer Service, had asked the coworker to write or sign a statement saying Complainant was a threat. We observe that while the Agency interviewed various management officials concerning this issue, it did not interview the coworker at issue. The record contains a letter from Complainant’s psychologist dated February 25, 2013, wherein the therapist stated that he has treated Complainant since 1999 and during that time he has never observed her to be a danger to herself or others. It is evident from the record that Agency officials were aware of and/or on notice of Complainant’s medical conditions. The Agency noted that Complainant has been diagnosed with obsessive compulsive disorder since at least November 1999. The Postmaster stated that Complainant had informed her supervisors than she has an anxiety disorder and cannot be given direction and cannot handle change. The Supervisor, Customer Service, and the SCS2 stated that they were aware of Complainant’s restrictions concerning use of her shoulder. The Supervisor, Customer Service, stated that he learned of her shoulder restrictions from the Postmaster when he began supervising Complainant in September 2012. Agency officials were clearly aware that changing Complainant’s routines caused her anxiety and exacerbated her obsessive compulsive disorder. Nevertheless, the Agency micromanaged Complainant’s route and subjected her to excessive street scrutiny by conducting three street observations within a three-week period and four observations over a two-month period. Agency officials overwhelmed her with instructions that were frequently petty, changed her case in a manner that could adversely impact her shoulder, and unnecessarily humiliated her by sending her to the carrier academy for new employee training. The Agency also failed to interview the coworker at issue in claim (18) and thus did not present sufficient evidence to refute Complainant’s contention that the Acting Supervisor, Customer Service, was seeking to have the coworker write or sign a statement that Complainant was a threat. The Agency overlooked the fact that what it considered to be time wasting practices were rather strategic mechanisms utilized by Complainant to address her obsessive compulsive disorder while still performing her job. The Agency’s disparagement of the symptoms of Complainant’s obsessive compulsive disorder and the methods employed by Complainant to deal with her condition reflect an insensitivity and hostility toward her based on her disability. We find that Complainant has established in claims (14), (16) and (18) that she was subjected to unlawful retaliatory harassment and harassment on the basis of disability. 0120151126 17 Finally, as to element (5) of her harassment claim, we find that Complainant has met her burden of establishing that the Agency was liable for the harassment because the acts were committed by various Supervisors. An employer is subject to vicarious liability for unlawful harassment if the harassment was “created by a supervisor with immediate … authority over the [complainant].” Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisor, EEOC Notice 915.002 (June 18, 1999) (“Vicarious Liability Guidance”), at 4 (citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998)). We do not discern evidence of harassment based on Complainant’s age, race, or sex but we do find that Complainant has established that she was subjected to harassment based on disability and reprisal. Fitness for Duty Exam Complainant alleged in claim (25) that she was sent hostile letters scheduling her for a Fitness- For-Duty Examination on July 31, 2014, and instructing her to stay off Agency premises until informed otherwise. A fitness for duty examination may be ordered only if it is job-related and consistent with business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). This means that the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of his or her job or pose a direct threat because of a medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance on Disability-Related Inquiries), No. 915.002 at Q.5, (July 27, 2000). Objective evidence is reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will interfere with his ability to perform essential job functions or will result in direct threat. Id. It is the burden of the employer to show that its disability-related inquiries and requests for medical examination are job-related and consistent with business necessity. See Cerge v. Dep't of Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9, 2007). Here we find that the Agency sent Complainant for the fitness for duty exam based on advice from the DRAC. The Postmaster stated that the recommendation was based on Complainant’s decline in performance, her repeated objection to following management’s instructions, and her statements that she suffers from disabilities that do not coincide with what was reviewed in the 2012 DRAC. Additionally, the Postmaster referenced Complainant’s refusal to provide medical documentation from her physician about her work restrictions and refusal to attend DRAC after the first meeting as reasons to keep her away from the workplace until receiving the results of the fitness-for-duty examination. These reasons are job-related and consistent with business necessity, and the Agency did not violate the Rehabilitation Act by sending Complainant or keeping her out of the workplace until she had been to the examination. 0120151126 18 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM in part as to the Agency’s final decision as to claims (1-6), (8-10), (12), (15), (17) and (19-25). In addition, we REVERSE in part the Agency’s final decision and find that the Agency violated the Rehabilitation Act with respect to incidents in claims (7), (11), (13-14), (16) and (18). This matter is REMANDED for further processing in accordance with the Order below. ORDER The Agency is ordered to take the following remedial action: 1. Within ninety (90) days of the date this decision is issued, the Agency shall determine the amount of compensatory damages to which Complainant is entitled. Within fifteen (15) calendar days of the date this decision is issued, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of her claim for compensatory damages within forty-five calendar days of the date Complainant receives the Agency’s notice. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.110. 2. Within ninety (90) days of the date this decision is issued, the Agency is directed to conduct at least eight (8) hours of in-person or interactive EEO training for all personnel currently within its employ who were management officials at its Bullhead City facility during the period of the incidents encompassed within this complaint. The training shall address their responsibilities under the Rehabilitation Act, with a special emphasis on mental disabilities. 3. Within sixty (60) days of the date this decision is issued, the Agency shall also consider taking disciplinary actions against the responsible management officials. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons for its decision not to impose discipline. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Bullhead City Post Office copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous 0120151126 19 places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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), 0120151126 20 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. 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 (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 0120151126 21 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 February 15, 2018 Date Copy with citationCopy as parenthetical citation