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

Equal Employment Opportunity Commission

Apr 4, 2018

0120160852 (E.E.O.C. Apr. 4, 2018)

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

Lela M.,1
Complainant,

v.

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

Appeal No. 0120160852

Hearing No. 460-2015-00098X

Agency No. 4G-770-0066-15

DECISION

On December 5, 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
November 24, 2015, final decision 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. Our review is de novo. For the
following reasons, the Commission AFFIRMS 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 Main Post Office in Spring, Texas.

On February 5, 2015, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the bases of her race (African-American), sex (female), and in
reprisal for her prior protected EEO activity under Title VII when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. Since December 10, 2014, and continuing, Complainant was not allowed to return to
work; and

2. On December 19, 2014, Complainant was issued a Notice of Removal.

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 EEOC
Administrative Judge (AJ). Complainant requested a hearing. The AJ dismissed the hearing
request on the grounds that Complainant failed to follow the AJ’s orders and failed to prosecute
her complaint. The AJ remanded the complaint to the Agency and the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency dismissed claim (2) on the grounds of mootness pursuant to 29 C.F.R.
§ 1614.107(a)(5). The Agency stated that as a result of a grievance settlement dated February 5,
2015, the Notice of Removal was expunged from all Agency files and records. The Agency
determined that the grievance settlement disposition completely eliminated all the effects of the
Notice of Removal. The Agency also reasoned that the circumstances surrounding the issuance
of the Notice of Removal were so unique that they would be highly unlikely to recur. The
Agency stated that the Notice of Removal was based on allegations that Complainant had
violated her medical restrictions, which had resulted from an on-the-job injury that occurred on
March 18, 2013. The Agency noted that there was no indication in the record that Complainant’s
injury is permanent. According to the Agency, its Office of the Inspector General recorded
observations that indicated Complainant’s medical condition had noticeably improved toward the
end of 2013. The Agency concluded that there was no reasonable expectation that the alleged
discrimination will recur in light of the significantly changed circumstances. The Agency noted
that Complainant claimed compensatory damages based on undue stress, anxiety, financial
difficulties and depression but that she provided no objective evidence of any alleged damages
incurred.

Despite its dismissal of claim (2) on the grounds of mootness, the Agency did analyze the merits
of this claim and claim (1). The Agency determined that Complainant failed to prove that it
subjected her to discrimination as alleged with regard to both claims. As for claim (1), the
Agency stated that Complainant sustained an injury to her neck and shoulder in March 2013,
while swatting at wasps that came out of a mailbox that she opened while delivering mail. The
Agency noted that on July 8, 2013, Complainant was sent for a Second Opinion Evaluation, and
on July 10, 2013, a Work Capacity Evaluation Musculoskeleton Conditions (OWCP-5C) was
completed, asserting that Complainant could return to work in a limited capacity, and that her
restrictions were expected to last six months. The Agency stated that on September 19, 2014,
Complainant was sent a Return to Work letter, requesting that she report for duty to her regular
unit given that medical documentation had been received which indicated that she was released
to return to work in a full duty capacity. According to the Agency, on November 12, 2014, it
sent Complainant an absence inquiry that included a request to substantiate her continued
absence from duty. The Agency noted that Complainant neither contacted management nor
returned to duty.
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With regard to claim (2), the Agency observed that Complainant contended that the Notice of
Removal should not have been issued given that she was injured on the job and did not violate
her medical restrictions. The Agency stated that the Notice of Removal was issued because
Complainant had been observed exceeding and/or violating her medical restrictions during the
period between October 29, 2013, and December 12, 2013. The Agency stated that Complainant
had violated provisions of the Employee and Labor Relations Manual (ELM) including
prohibitions against fraud or false statements in a government matter and the responsibility of an
employee to be honest and of good character and reputation. The Agency stated that
Complainant’s Supervisor issued the Notice of Removal and the Station Manager was the
concurring official.

The Agency determined that Complainant failed to set forth a prima facie case of reprisal with
regard to each claim. According to the Agency, Complainant’s most recent prior EEO activity
was a complaint that was closed on November 28, 2012. The Agency stated that this was
approximately two years before the matters currently at issue, and thus was too great a period of
time to support an inference of causation. The Agency also determined with regard to claim (1)
that Complainant was encouraged to return to work rather than not being permitted to return to
work. The Agency stated that an adverse action did not occur with respect to claim (1).

As for Complainant’s claims of race and sex discrimination, the Agency reiterated that an
adverse action did not occur as to claim (1) and determined that no prima facie case was
established. In terms of claim (2), the Agency observed that Complainant named two
comparisons who she claimed received more favorable treatment. The Agency distinguished
these comparisons from Complainant noting that neither performed the same job functions nor
engaged in the same or similar conduct as Complainant, and thus were not similarly situated to
Complainant. The Agency determined that Complainant failed to establish a prima facie case of
race and sex discrimination as to claim (2).

Assuming arguendo that Complainant had established a prima facie case as to claim (1), the
Agency stated that it demonstrated management did not act in a discriminatory manner.
According to the Agency, the record reveals that Complainant was requested to return to work
rather than Complainant’s argument that she was not permitted to return to work. As for claim
(2), the Agency determined that Complainant violated her medical restrictions by engaging in a
number of physical activities inconsistent with her claim of being totally disabled. The Agency
stated that Complainant was given specific restrictions and was informed that compliance must
be adhered to on and off the employment site. The Agency asserted that between October 29,
2013 and December 12, 2013, Complainant was observed walking, driving, jogging, getting into
and out of her truck, sitting in her truck for extended periods of time, carrying bags and boxes,
carrying a large bag and large box up the stairs to her apartment after shopping, and walking up
the stairs to her apartment without utilizing guardrails or any other type of assistance, without
demonstrating any sign of pain or discomfort. The Agency noted that Complainant’s restrictions
consisted of no driving, pulling/pushing, simple grasping, fine manipulation and reaching above
shoulder. Complainant’s lifting restrictions were two pounds and she had sitting restrictions of
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4-6 hours, twisting 4-5 hours, standing, walking, bending/stooping 1-2 hours, climbing one hour
and kneeling 0-1 hour. The Agency stated that Complainant was questioned about the OIG’s
investigation observations and her responses did not sufficiently explain her conduct. The
Agency determined that it presented a non-discriminatory reason for the issuance of the Notice
of Removal.

The Agency observed that Complainant attempted to establish pretext by arguing management
extended more favorable treatment to two injured male employees by offering them the
opportunity to return to work, with either restrictions or different duties. The Agency rejected
this contention as it stated that Complainant did not provide any comparisons not in her protected
groups who were treated more favorably than her under the same or similar circumstances. The
Agency noted that one of the comparisons named by Complainant was also African-American
and had engaged in EEO activity. Further, the Agency reasoned that race and sex were not
motivations in the issuance of the Notice of Removal given that Complainant’s Supervisor was
also an African-American female. The Agency determined that Complainant failed to establish
that its explanations for its actions were a pretext for discrimination. Thereafter, Complainant
filed the instant appeal.

CONTENTIONS ON APPEAL

Complainant did not submit any statement or brief in support of her appeal. The Agency
submitted a brief in which it urged the Commission to affirm its final Agency decision. The
Agency asserts that Complainant was released to return to duty on April 8, 2014, and her OWCP
benefits ceased on November 8, 2014. In response to its absence inquiry, the Agency states that
Complainant provided a CA-17 dated November 25, 2014, indicating that she could not return to
work. The Agency asserts that Complainant has not provided any documentation that she could
return to work. With regard to the African-American comparison cited by Complainant, the
Agency notes that Complainant’s Supervisor stated that the comparison is a Clerk with different
duties than Complainant who is a Carrier and that his restrictions did not permit him to perform
clerk duties. As for a Hispanic male comparison identified by Complainant, the Agency states
that Complainant offered no explanation as to how he was treated more favorably and there is no
evidence that he suffered an injury, was out from work and instructed to return. The Agency
reiterates that Complainant did not establish a prima facie case of discrimination and that it had
legitimate, nondiscriminatory reasons for its actions.

ANALYSIS AND FINDINGS

In view of the Agency’s decision on the merits of both claims (1) and (2), we will not address the
Agency’s dismissal of claim (2) on the grounds of mootness.

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
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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 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
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).

We shall assume arguendo that Complainant set forth a prima facie case under each of the
alleged bases with regard to both claims. The Agency asserted as to claim (1) that Complainant
was requested to return to work. According to the Agency, on July 8, 2013, Complainant was
sent for a Second Opinion Evaluation, and on July 10, 2013, a Work Capacity Evaluation
Musculoskeleton Conditions (OWCP-5C) was completed, indicating that Complainant could
return to work in a limited capacity, and that her restrictions were expected to last six months.
The Agency stated that on September 19, 2014, Complainant was sent a Return to Work letter,
requesting that she report for duty to her regular unit given that medical documentation had been
received which stated that she was released to return to work in a full duty capacity. According
to the Agency, on November 12, 2014, it sent Complainant an absence inquiry that included a
request to substantiate her continued absence from duty. The Agency asserted that Complainant
neither contacted management nor returned to duty. We find that the Agency has articulated
legitimate, nondiscriminatory reasons to support its position that it did not prevent Complainant
from returning to work.

Furthermore, we observe that Complainant has not refuted the Agency’s position that she only
provided the Agency in November 2014 with a CA-17 form indicating that she could not return
to work, and that she has not provided any documentation that she can return to work. Further,
Complainant has not demonstrated that her circumstances were similar to those employees who
were permitted to return to work after sustaining injuries. We find that Complainant has failed to
establish that the Agency’s explanation for its actions in claim (1) was pretext intended to mask
discriminatory motivation.

As for claim (2), the Agency stated that the Notice of Removal was issued by Complainant’s
Supervisor based on Complainant’s violation of her medical restrictions by engaging in a number
of physical activities inconsistent with her claim of being totally disabled. The Agency asserted
that between October 29, 2013 and December 12, 2013, pursuant to an OIG investigation,
Complainant was observed walking, driving, jogging, getting into and out of her truck, sitting in
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her truck for extended periods of time, carrying bags and boxes, carrying a large bag and large
box up the stairs to her apartment after shopping, and walking up the stairs to her apartment
without utilizing guardrails or any other type of assistance, without demonstrating any sign of
pain or discomfort. The Agency further stated that Complainant had violated provisions of the
ELM including prohibitions against fraud or false statements in a government matter and the
responsibility of an employee to be honest and of good character and reputation. We find that
the Agency has articulated legitimate, nondiscriminatory reasons for its issuance of the Notice of
Removal.

Complainant attempts to establish pretext by claiming that she did not violate her medical
restrictions. We find that pretext has not been established with regard to the Agency’s
explanation for the Notice of Removal in light of the fact that Complainant did not fully adhere
to her medical restrictions and that there is insufficient evidence to establish that Agency
officials responsible for the issuance of the Notice of Removal did not genuinely believe, based
on the OIG report of investigation, that Complainant had violated her medical restrictions in
several ways. We find that Complainant did not show that the Agency’s reasons were pretext for
discrimination.

CONCLUSION

After a review of the record in its entirety it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of
the evidence of record does not establish that discrimination occurred.

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
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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 (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

April 4, 2018
Date