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

Equal Employment Opportunity Commission

Jul 15, 2016

0120141561 (E.E.O.C. Jul. 15, 2016)

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

Lydia W.,1
Complainant,

v.

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

Appeal No. 0120141561

Agency No. 4K280007911

DECISION

Complainant filed an appeal from the Agency’s February 10, 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 (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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a full-time Mail
Processing Clerk, PS-06, at the Matthews Post Office in Matthews, North Carolina. On May
28, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against
her on the bases of race (African American), sex (female), disability (lower back and leg), age
(not specified), and reprisal for prior protected EEO activity when:

1. her supervisor (S1) harassed her on a daily basis, including an incident on April 8,
2011, when she was yelled at, threatened and harassed on the workroom floor;

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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2. on May 16, 2011, she requested her paycheck be mailed which was not promptly
done; and
3. S1 refused to comply with her medical restrictions after an on-the-job injury.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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.

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”).

Claim #1 (Harassment)

Complainant alleges that after a discussion in S1’s office about Complainant’s work
performance, S1 approached Complainant on the workroom floor, where S1 yelled at and
threatened Complainant. Complainant contends that this incident constituted actionable
workplace harassment.

It is well-settled that harassment based on an individual's statutorily protected classes is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986), see also Olson v.
Housing and Urban Development, EEOC Request No. 05930413 (June 16, 1994) (finding that
acts of harassment directed at an employee because of a physical or mental disability, if
sufficiently severe or pervasive, violate the Rehabilitation Act). In order to establish a claim
of harassment, Complainant must show that: (1) she belongs to the statutorily protected classes
or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her
membership in those classes or her prior EEO activity; (3) the harassment complained of was
based on her membership in those classes or her prior EEO activity; (4) the harassment had the
purpose or effect of unreasonably interfering with her work performance 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).

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Therefore, to prove her harassment claim, Complainant must establish 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 (in this case, age or
prior protected EEO activity). Only if Complainant establishes both of those elements,
hostility and motive, will the question of Agency liability present itself.

Here, there is no evidence that any of the claimed harassing actions undertaken by S1 were
based on Complainant’s membership in any protected class. For example, there is no evidence
of a racist slur or disability-based ridicule that would support an inference of discriminatory
animus. Without evidence of this nature, Complainant’s harassment claim fails.

Claim #2 (Delayed Paycheck)

Complainant alleges that she was discriminated against when S1 failed to promptly comply
with her request that she mail Complainant’s paycheck to her while she was at home on leave.
To establish a prima facie case of disparate treatment discrimination, Complainant must show
that she was treated less favorably in this respect than similarly situated employees outside her
protected classes. Complainant has adduced no evidence on this point. There is no evidence
of any sort that management promptly complied with other employees’ requests to send their
paychecks by mail. Nor is there any other evidence that would support an inference of
discriminatory animus on this claim.

Claim #3 (Failure to Observe Medical Restrictions)

Complainant contends that S1 failed to observe her medical restrictions when she directed
Complainant to walk to a doorway in her work area to receive a certified letter from a
customer rather than having a co-worker accept the letter from the customer and hand it to
Complainant while she remained seated. According to Complainant, S1 stated to the co-
worker “No, I don’t want you to get the certified letter. I want [Complainant] to get it.”
Complainant argues that being required to stand and walk to the doorway on this occasion was
inconsistent with her medical restriction which, according to Complainant, instructed her to:
“to stay off [her] knee, and to refrain from standing or constant walking.” ROI at 127.
Complainant’s position is not well taken. Record evidence indicates that the relevant medical
restrictions directed that Complainant “alternate between sitting, standing and walking every
45 minutes.” ROI at 137. S1’s instruction to Complainant to stand and walk to a nearby
doorway did not contravene Complainant’s medical restrictions. Standing and walking a short
distance were consistent with those restrictions.

CONCLUSION

For the foregoing reasons, we AFFIRM the Agency’s final decision finding no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

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RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

July 15, 2016
Date