Majorie J.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 29, 20180120172623 (E.E.O.C. Nov. 29, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Majorie J.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120172623 Agency No. 4G-700-0074-16 DECISION On July 22, 2017, 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 July 3, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a City Carrier Assistant at the Agency’s New Orleans Central Carrier Station and Elmwood Carrier Station in New Orleans, Louisiana. On July 25, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of disability when: 1. on April 22, 2016, Complainant’s request for a hold-down assignment was denied; and, 2. since April 22, 2016, Complainant has been provided with work assignments that exceeded her medical restrictions. 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. 0120172623 2 Complainant also alleged discrimination on the bases of sex (female), retaliation (current EEO activity) and disability when: 3. on July 25, 2016, she was provided with a work assignment of approximately three hours per day; 4. on or about July 25, 2016, her start time was changed to 1:15 p.m., and, 5. since on or about July 25, 2016, she has been required to work past 8:30 p.m. without any supervision in the facility. The investigative record reflects the following pertinent matters relating to the subject claims. Complainant stated that she was diagnosed with a sprained left ankle on March 17, 2016. Complainant stated that the Supervisor of Customer Services (female) (hereinafter referred to as “S1”) was aware of her sprained ankle. Complainant stated that she has walking restrictions and is not able to stand for extended periods of time.2 S1 stated she was not aware of Complainant suffering from a medical condition or impairment. S1 indicated that Complainant had prior restrictions, but that during the relevant time, S1 had not received any medical documentation from Complainant. A second supervisor of customer services (male) (hereinafter referred to as “S2”) stated that Complainant was previously on limited duty, but he did not know what her limitations or condition was, and she did not work with any difficulties. The Manager of Customer Services (female) (hereinafter referred to as “the Manager”) was unaware of any restrictions or conditions. The Acting Station Manager (male) (hereinafter referred to as “the Acting SM”) stated that he was also unaware of any conditions, but was aware that Complainant had some prior limitations. Claim 1 City carrier assistants can request a “Hold Down Assignment” when a route is vacant for 15 days or more. The routes are held until a regular carrier takes control of the route. On April 22, 2016, Complainant stated that she submitted a Hold Down request for Route 1604 to S1. Complainant alleged that S1 informed her that her 8-hour work day restriction prevented her from obtaining the Hold Down Assignment, and denied her request. S1, on the other hand, stated that Complainant never put in a request for a Hold Down Assignment. S1 stated that a Hold Down Assignment request is prepared on a formal buck slip, and that the supervisor and union must sign and date the slip. 2 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. 0120172623 3 The record contains a handwritten note from Complainant dated April 22, 2016 requesting to hold down Route 1604. The note also states, “Supervisor Refuse to Sign!”. There is no indication who wrote the refusal statement. The request is not on a buck slip, in the manner discussed above. Claim 2 On April 22, 2016, Complainant worked under an 8-hour restriction because of a former on-the- job injury. She stated she was given several routes in zones 19, 24, and 16. On several occasions, she informed S1 that the routes exceeded Complainant’s restriction capabilities. She stated she submitted the proper documentation but was denied assistance by S1. She stated she was on medical restrictions prior to April 22, 2016 and she was previously given work that met her medical restrictions. Complainant stated that the actions of management were discriminatory based on her medical condition because she was purposely given work she could not finish. S1 stated Complainant never supplied her with medical documentation stating she had restrictions. S1 stated that when Complainant mentioned she had medical restrictions, she asked Complainant for supporting documentation, but never received any such documentation. Nonetheless, S1 asserted that she always chose to assign Complainant with work that could be completed within a normal eight-hour day. Claims 3, 4, and 5 On July 25, 2016, Complainant asserted that she began being scheduled for work at 1:15 PM every day with only approximately three hours of work. She stated she was not given a reason, but asserted that only employees with medical restrictions were scheduled at that time. She stated that prior to July 25, 2016, she was working 8 hours per day. Management officials all noted that Complainant was not at work on July 25, 2016. Regarding the shift change, S1 stated that because the location was fully staffed, city carrier assistants, such as Complainant, had start times moved. S1 stated that some employees were moved to start at 1:15 pm, and others at 2:00 pm. The Manager noted that city carrier assistants do not have set time schedules, and are scheduled when their services are needed. Complainant stated that she typically ends her shift at 5:30 pm, but in claim 5 she alleged that she was required to work until 8:30pm starting on July 25, 2016. However, her affidavit indicates that this action may have been a onetime incident that occurred when her Agency vehicle broke down and she was required to work past 8:30 pm. Regarding working without a supervision, management officials all asserted that there is always a supervisor or manager present when non-supervisorial staff are working. S2 stated that he works as an evening relief supervisor and that Complainant worked at least four shifts past 8:30 pm, but that there has always been a supervisor present. All management officials denied 0120172623 4 requiring Complainant to work past 8:30 pm. Management noted that employees frequently stay past the end of their shifts, to finish his/her assignments. The Time and Attendance Record indicated that Complainant did not work a shift on July 25, 2016. After the investigation was completed, 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 Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but after failing to appear at the initial status conference, and failing to comply with numerous orders, the AJ remanded the complaint to the Agency. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. Complainant did not raise any new contentions on appeal. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Even if we assume arguendo that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, there is no record of Complainant formally requesting to hold down Route 1604. Indeed, 0120172623 5 we acknowledge that the record only contains a hand-written note from Complainant requesting the hold down, and a hand-written notation that the supervisor allegedly refused the request. Regarding claim 2, Complainant alleged that she was discriminatorily forced to work shifts past her medical restrictions. However, the record has no indication that Complainant had a medically required time limitation on her shifts. Furthermore, when S1 asked Complainant for medical documentation, Complainant failed to produce such paperwork. Regarding claims 3, 4, and 5, the Time and Attendance record indicated that Complainant was not working on July 25, 2016. However, even if we view the claims having occurred on or about that date, management has provided legitimate, nondiscriminatory reasons for its actions. In claims 3, and 4, Complainant alleged that her shift was moved to later in the day, which resulted in less work. Here, management stated that when a location is full, city carrier assistants, like Complainant, can see shift schedule changes. Complainant was not the only assistant with a shift change. There is no evidence of discriminatory animus on behalf of management when Complainant’s shift schedule was change. Additionally, there was no indication that Complainant was forced to work beyond 8:30 pm, and without supervision on or about July 25, 2016 (claim 5). While there are notations that employees sometimes work late to finish the assigned workload, there is no evidence that Complainant was forced to do so. Additionally, even if she were expected to work overtime, there is no evidence that she had a medically documented reason barring occasional overtime scheduling. Furthermore, there is no indication that she ever worked without management present in the facility. Moreover, even if she, or others, occasionally worked without a supervisor present, there is no indication that the action would be discriminatory. In sum, there is no evidence which suggests the Agency’s actions were based on discriminatory animus. Complainant has not provided any evidence that suggests that the Agency's reasons were pretext for discrimination or that discriminatory or retaliatory animus was involved. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no discrimination. 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. 0120172623 6 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. 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. 0120172623 7 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. Carlton M. Hadden, Director Office of Federal Operations November 29, 2018 Date Copy with citationCopy as parenthetical citation