Janet O.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

Mar 13, 2018

0120160215 (E.E.O.C. Mar. 13, 2018)

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

Janet O.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.

Appeal No. 0120160215

Agency No. AAFES-15-014

DECISION

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 September 18, 2015, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

Complainant worked as a Senior Store Associate, Hourly Pay Plan NF-2, at the Kaiserslautern
Military Community Consolidated Exchange in Ramstein, Germany. On November 17, 2014,
Complainant filed an EEO complaint in which she alleged that the Main Store Manager, her
fourth-level supervisor (S4), subjected her to disparate treatment on the basis of disability
(residual effects of on-the-job injury to hip and lower back) by:

1. refusing to allow her to return to work between July 9 and July 25, 2014; and

2. detailing her to the position of Senior Office Associate on September 27, 2014.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an EEOC
Administrative Judge. In accordance with Complainant’s request, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

Complainant’s nominal assignment was in the Shoe Department. On November 7, 2012, while
stocking shoes, Complainant slipped and fell, injuring her right hip and lower back. She averred
that since the date of her injury, she experienced pain associated with bending and standing.
When asked what major life activities were affected, Complainant listed sleeping, walking,
standing, lifting, bending, and working. IR 171-72. A Workers’ Compensation Form LS-204
prepared for Complainant and dated July 16, 2014, included the following restrictions: no
bending from the waistline and lifting no more than 30 pounds. These restrictions would remain
in place for one year. IR 91-93, 180. A return-to-work notice dated July 25, 2014, stated that
Complainant could return to modified duty that included restrictions on bending from the waist
and no lifting over 15 pounds. The notice further stated that Complainant could return to full
duty in one year. IR 89-90.

Complainant averred that S4 refused to allow her to return to work between July 9, 2014 and
July 25, 2014. IR 173-74. According to S4, the Supervisory Store Assistant who was
Complainant’s first-line supervisor, the Sales and Merchandise Manager who served as
Complainant’s third-line supervisor, and a Human Resources staff member, the medical
restrictions that Complainant had been under since her injury had expired in March 2014 and
needed to be updated. After being told by S4 on July 3, 2014, that she needed to complete
another LS-204 form, Complainant did not submit the form until July 17, 2014. Once the
information had been reviewed by S4, the Human Resources staff, and other management
officials, Complainant was cleared to return to work on July 25, 2014. IR 58-59, 73, 88-89, 94,
106-07, 180-83, 188, 193, 201.

Complainant averred that she had been assigned to the Jewelry Department since November
2012 as an accommodation for her medical restrictions. She further averred that she resumed her
position in the Jewelry Department when she returned to work in July 2014, but on September
27, 2014, S4 had her detailed to the Administrative Department as a Senior Office Associate. IR
175-76. S4, the Sales and Services Manager, the Human Resources staff member, and the
General Manager, who was Complainant’s fifth-line supervisor, responded that Complainant was
detailed to the Administrative Department strictly as an accommodation for Complainant’s
updated medical restrictions. They stated that working behind the Jewelry counter required
constant bending at the waist because of the counter’s low height, and that this was beyond
Complainant’s restrictions. IR 183-84, 189, 198-99, 202-03.
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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, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

To prevail in a disparate treatment claim brought under the Rehabilitation Act, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Prewitt v. United States Postal Service, 662 F. 2d
292, 310 (5th Cir. 1981). The Commission will assume without deciding (for the purposes of this
decision) that Complainant is an individual with a disability.

Normally, Complainant’s first step in the disparate treatment analysis would be to 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 Construction Co. v.
Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since S4 articulated legitimate and nondiscriminatory reasons for her actions vis-à-vis
Complainant. See U.S. Postal Service Board 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).
Regarding S4’s denial of clearance for Complainant to return to work until July 25, 2014, S4
stated that she needed documentation of Complainant’s current medical restrictions. As to the
detail to the Administrative Department, S4 stated that the detail was in conformity with
Complainant’s updated medical restrictions, which included no bending at the waist, and that
Complainant’s job behind the Jewelry counter required her to do just that.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is a pretext for disability discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993); Texas Department of Community. 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). Pretext can
be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact
finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC
Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008). When asked by the investigator why she believed that she was
being treated differently than other employees because of her disability, Complainant averred
that S4 refused to give her the time she needed to complete the updated LS-204 form and that her
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position within the Jewelry Department was within her medical restrictions. IR 174, 176. The
affidavits of the various management officials, including S4, together with the LS-204 and other
documents show that Complainant was given an extensive amount of time to submit updated
medical documentation, and that the position in the Jewelry department required extensive
bending in order to open the counter and retrieve items from inside of it. Beyond her own
assertions, Complainant has not submitted affidavits, declarations, or unsworn statements from
witnesses other than herself or documents that contradict the explanations provided by S4 and
the other management officials, or which call their veracity into question. We therefore agree
with the Agency that Complainant has not presented evidence sufficient to establish a disability-
based discriminatory motivation on the part of S4 or any other management official in
connection with the incidents described in her complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
Agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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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.

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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

March 13, 2018
Date