Kelsie T.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 21, 2019

0120181746 (E.E.O.C. Aug. 21, 2019)

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

Kelsie T.,1
Complainant,

v.

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

Appeal No. 0120181746
Hearing No. 450-2014-00115X
Agency No. 4G-752-0261-13

DECISION

On April 30, 2018, 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
April 3, 2018, final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented are whether the Equal Employment Opportunity Commission Administrative
Judge (AJ) erred in finding that Complainant did not demonstrate that she was subjected to
discrimination and/or harassment with regard to the allegations in her complaint; and whether the
AJ erred in granting $7,000.00 in nonpecuniary compensatory damages after finding that the

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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Agency violated 29 CFR § 1630.12(b)2 of the Rehabilitation Act when it interfered with
Complainant’s right to request a reasonable accommodation.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Nothaven Station in Dallas, Texas. Complainant alleged that the route that she worked
was longer than her eight-hour restrictions. She indicated that due to her heart condition, she was
unable to deliver all of the mail in the eight hours that was allotted. On February 21, 2018,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (Caucasian), sex (female), disability (knee and back), age (49), and reprisal for prior
protected EEO activity when:

1: On July 12 and August 2, 2013, route inspectors went on her route with her;
2: On August 10, 2013, she was issued three Letters of Warning;
3: On August 22, 2013, she was issued a 7-day suspension;
4: On August 24, 2013, her begin tour time was changed from 8:30 am to 10:00 am;
5: On September 10, 2013, she was issued a 14-day suspension.

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. Complainant timely requested a
hearing, which was held on August 16, 2017. The AJ assigned to the matter issued a decision on
February 21, 2018. The AJ determined that Complainant did not demonstrate that she was
subjected to discrimination based on race, sex, disability, age or reprisal. The AJ found that the
Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that with respect
to claim no. 1, the route inspector went on the route with Complainant because she maintained that
the route was longer than eight hours. The route inspector found that the route was slightly over
the eight-hour time but by only 15 minutes which did not account for the fact that Complainant
returned undelivered mail to the office and requested delivery assistance on a daily basis.
Complainant disagreed with the route inspection, so a second observation was scheduled but was
not conducted because she left work early due to illness.

Regarding, claim no 2, where Complainant was issued three Letters of Warning (LOW), the record
revealed that management observed during a street observation that Complainant had left the cargo
door of her vehicle open and had left her Agency cell phone in the vehicle. Complainant was
thereafter issued a LOW for Unsatisfactory Performance – Failure to Follow Instructions, when
on July 27, 2013, she left the cargo door to her vehicle open, and failed to secure the mail and
Agency property. A grievance was filed, and the LOW was reduced to a discussion.

2 29 CFR § 1630.12(b), provides that it is unlawful to coerce, intimidate, threaten, harass or
interfere with any individual in the exercise or enjoyment of, or because that individual aided or
encouraged any other individual in the exercise of, any right granted or protected by this part.
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On August 15, 2013, Complainant was issued a LOW for Unsatisfactory Performance – Bringing
First Class Mail Back, it was noted that she brought one and half hours of mail back to office,
which another carrier had to deliver. A grievance was filed, and the LOW was reduced to a
discussion. On August 15, 2013, Complainant was issued another LOW after she again returned
first class mail back to the office for delivery. She had been approved 30 minutes delivery
assistance, but she returned with one and a half hours of mail. Again, after a grievance was filed,
this LOW was also reduced to a discussion.

Regarding claim no. 3, on August 22, 2013, Complainant was issued a 7-day suspension for
Unsatisfactory Performance-Failure to Follow Instructions: Bringing Back Mail, when she again
brought back first-class mail. A grievance was filed on this suspension and was also reduced to a
discussion.

With respect to claim no. 4, Complainant maintained that her tour time was changed from 8:30 am
to 10:00 am. Management explained that her tour time was changed to minimize delay and
accommodate her restrictions. When Complainant arrived at the station at 10:00 am, her route was
already cased and pulled down by another carrier, so all she had to do was to load her truck and
deliver her route. However, because Complainant objected to her schedule change, it was changed
back to the original time.

Finally, regarding claim no. 5, on September 10, 2013, she was issued a 14-day suspension, after
she returned an hour of mail. Complainant, however, had been approved for two hours of auxiliary
assistance so, management was concerned after she still returned mail to the office. Complainant
filed a grievance, and the suspension was resolved and reduced to a discussion.

Complainant felt that the disciplinary letters were “intended to intimidate, bully harass, scare [her]
to go against” her doctor’s restrictions for fear of “being put off the clock– fired.” Complainant
also believed that the pace of the route was based on the previous bidder’s restrictions and had not
been adjusted to her pace.

The AJ found that the comparators offered by Complainant were not similarly situated to her. The
AJ also found that there was no evidence that anyone not of her protected bases was treated more
favorably. The AJ found that, under the Rehabilitation Act, the Agency was not required to
reassign one hour or more daily work to another carrier or permanently reduce the route to such
an extent. The AJ also noted that an unbiased inspector found that although the route was 15
minutes over, Complainant could have finished the route on time absent her slowing down at the
end.

The AJ found that Complainant did not demonstrate that she was denied a reasonable
accommodation, as the Agency, at Complainant’s request, performed a route inspection and when
Complainant disagreed with the outcome, another route inspection was ordered. Management had
other carriers’ case her mail so that Complainant could have more time to deliver the mail and still
she returned mail back to the office.
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Finally, the AJ found that Complainant did not demonstrate that she was subjected to harassment
as the incidents complained of were work related inquiries from management regarding the
delivery of the mail, and the incidents were not severe or pervasive enough to establish a hostile
work environment.

Despite finding that Complainant did not demonstrate that she was subjected to discrimination,
harassment, or denied a reasonable accommodation with regard to the allegations in her complaint,
the AJ found that the Agency violated the Rehabilitation Act by interfering with Complainant’s
rights with respect to certain language in both the 7- and 14-day suspension letters. Specifically,
the AJ found that the Agency violated the Rehabilitation Act with respect to the language used in
the suspension letters and when some managers made certain frequent comments about
Complainant’s inability to deliver the mail. The AJ found that Complainant was entitled to
$7,000.00 in non-pecuniary compensatory damages, to consider providing training; and to post a
notice regarding the violation.

The Agency subsequently issued a final order indicating that it would implement the AJ’s decision
finding that Complainant failed to prove that the Agency subjected her to discrimination, to
harassment or denied her a reasonable accommodation, but that the Agency did violate 29 CFR §
1630.12(b).

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that she has proof of harassment, and that
she felt humiliated by the supervisors allowing other carriers to case her route. She maintains that
her route was not an eight-hour route and because she could no longer work overtime, both
supervisors and coworkers made rude comments about her regarding her returning the mail to the
office every day.

In response, the Agency maintains that although it implemented the AJ’s finding of no
discrimination, it feels that the AJ improperly considered sua sponte the violation of 29 C.F.R. §
1630.12(b) without notifying the parties so that they could address the issue. Therefore, the
Agency now appeals this portion of the AJ’s decision.

The Agency acknowledges, however, that at the damages hearing, the AJ did permit the Agency
to assert its defense against the award of damages under 29 CFR § 1630.12(b). The Agency argued
that this regulation conflicted with its regulation that delivery of the mail could not be interrupted.
The Agency maintains that the AJ improperly awarded Complainant $7,000.00, in non-pecuniary
compensatory damages. The Agency also requests that the Commission reverse this finding.

ANALYSIS AND FINDINGS

Standard of Review

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Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. An AJ’s credibility determination
based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony, or the testimony so lacks in
credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110,
Chapter 9, at § VI.B. (Aug. 5, 2015).

At the outset, we reject the Agency’s arguments on appeal contesting the AJ’s finding of a violation
of 29 CFR § 1630.12(b), and the remedy imposed by the AJ. The Agency issued a final order
indicating that it would implement the AJ’s decision. Consequently, the AJ’s decision is now the
Agency’s decision. The Agency could have chosen to not fully implement the AJ’s decision and
file an appeal to the EEOC, but it did not do so for whatever reason. Therefore, we will not allow
the Agency to benefit from its inaction by entertaining its arguments on appeal challenging the
AJ’s decision.

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that there is substantial evidence in the record to support the
AJ’s findings that with regard to claims (1) – (5) the Agency articulated legitimate,
nondiscriminatory reasons for its actions as was discussed above, and that Complainant did not
demonstrate that the articulated reasons were pretext for discrimination. We also find substantial
evidence to support the AJ’s finding that Complainant did not demonstrate that she was denied a
reasonable accommodation. While Complainant never explicitly requested reasonable
accommodation, it is clear from the record that an accommodation may have been needed and
should have been considered. Here, the record indicates that the Agency did engage in an
interactive process and sought to provide Complainant with an effective accommodation. The
Agency responded to her requests for a route review and when she did not agree with the results,
a second route review was scheduled. Management attempted to shorten her route by casing it for
her so that she could start the day delivering mail, and they allowed her hours of assistance. The
record indicates that the Agency continued to engage in the interactive process to find an effective
accommodation until Complainant retired.

On appeal, we find that other than Complainant’s conclusory arguments, she did not provide any
evidence which suggested that the AJ erred in finding no discrimination or harassment with regard
to the specific allegations contained in her complaint.

CONCLUSION

Accordingly, the Agency’s final order which implemented the AJ’s decision is AFFIRMED.

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ORDER

To the extent that the Agency has not already done so, within 120 days, the Agency shall:

1. Pay Complainant $7,000.00 in non-pecuniary compensatory damages;
2. Provide 8 (eight) hours of training on the Rehabilitation Act, to include the Agency’s
obligation to provide reasonable accommodation to qualified individuals with
disabilities, to those management officials involved in the issuance of the 7-day and
14-day suspension letters and the management officials that ridiculed Complainant;
3. The Agency shall consider taking disciplinary actions against the management officials
involved in the decision to issue the suspension letters and the management officials
that ridiculed Complainant. The Commission does not consider training to be
disciplinary action. The Agency shall report its decision to the Compliance Officer. 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 reason(s) for its
decision not to impose discipline. If the responsible management officials have left the
Agency’s employ, the Agency shall furnish documentation of their departure dates.
4. The Agency shall Post the attached Notice, if it has not already done so.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission’s Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

POSTING ORDER (G0617)

The Agency is ordered to post at its Nothaven Station in Dallas, Texas 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
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).
ATTORNEY’S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)),
she is entitled to an award of reasonable attorney’s fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid by the Agency. The attorney
shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity
Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this
decision was issued. The Agency shall then process the claim for attorney’s fees in accordance
with 29 C.F.R. § 1614.501.
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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.

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), 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.
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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 (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.

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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

August 21, 2019
Date