Maren K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Dec 8, 2017

0120151872 (E.E.O.C. Dec. 8, 2017)

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

Maren K.,1
Complainant,

v.

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

Appeal No. 0120151872

Agency No. 4E-995-0009-14

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated April 9, 2015, finding no discrimination
regarding her 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

In her complaint, filed on June 9, 2014, Complainant alleged discrimination based on sex
(female) and disability (sciatic of the lumbar region) when:

(1) The day before Thanksgiving 2013, her manager (M1) 2 yelled at her, pointed a pen in
her face and told her to clock out;
(2) She was mandated to work on Thanksgiving Day in November 2013;

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.
2 The parties agreed that the responsible official for the actions, except for that raised in claim
(7), was Complainant’s manager and not her supervisor.
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(3) On various dates, including February 18, 2014, M1 created a hostile work environment
when she harassed her regarding her medical restrictions;
(4) On March 6, 2014, M1 ordered her to exceed her medical restrictions, pushed her in a
chair, and told her to clock out and go home; and
(5) On March 29, 2014, she was issued a Notice of Seven Day Suspension.

Complainant also alleged harassment in reprisal for prior EEO activity when:

(6) On July 28, 2014, M1 grabbed her around her waist; and
(7) On September 8, 2014, she became aware that her supervisor (S1) changed her request
for Leave Without Pay (LWOP) for May 20 - 24, 2014, to sick leave.

After completion of the investigation of the complaint, Complainant was notified of her right to
request a hearing. Complainant did not request a hearing. The Agency issued its final Agency
decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that Complainant was employed by the
Agency as a Full-Time Sales, Services/Distribution Associate (SSA) at the Agency’s Alaska
Midtown Station in Anchorage, Alaska. Complainant indicated that her disability was sciatic of
the lumbar region and she was first diagnosed of such when she was injured at work on January
16, 2010, and without surgery her physician believes her condition was permanent. On February
17, 2014, Complainant’s doctor indicated that her restrictions included: no overhead lifting,
lifting and pushing/pulling up to 10 pounds, and sitting/standing up to 4 hours per day.

Management indicated that at the relevant time, Complainant was in a modified job assignment
to accommodate her conditions; she worked 4 hours on her window duties (taking care of
customer needs and selling stamps), and the other 4 hours on various duties such as taking care
of the box section, second notices, write up notices, and filing. Complainant acknowledged that
the Agency accommodated her conditions since 2013.
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Regarding claim (1), M1 stated that at the relevant time, M1 saw Complainant talking to a
customer who asked her about working on Thanksgiving; she responded by stating that she was
working after she filed a grievance; M1 then instructed her not to discuss personal issues with
customers; Complainant then told M1 she was going to file an EEO complaint, to see her lawyer,
and to clock out; and M1 told her to clock out. M1 denied yelling or pointing a pen in
Complainant’s face during the time at issue. Complainant acknowledged that at the relevant
time, she did talk with a customer about her holiday situation.

Regarding claim (2), M1 indicated that during the week in question in November 2013,
Complainant, based on her choice, was originally scheduled to work on her non-scheduled day,
the day before Thanksgiving Day, and not on Thanksgiving Day. On Tuesday prior to that work
day, however, Complainant brought her updated doctor’s note indicating she could not work on
her non-scheduled day; thus, she was scheduled to work on her scheduled work day which
happened to be Thanksgiving Day for that week.

Regarding claim (3), Complainant claimed that around the end of January or the beginning of
February 2014, M1 told her to either come to work or take a medical retirement; and on February
18, 2014, M1 repeated the comment. M1 denied making the subject comment about
Complainant’s medical retirement or harassing her about her medical restrictions.

Regarding claims (4) and (5), Complainant indicated that she normally worked at the
window/counter from 2:00 pm to 5:45 pm and took a “sitting break” from 5:45 pm to 6:00 pm.
On the date of the incident, stated Complainant, she worked/stood at the window since 2:00 pm
and was not relieved by her coworker until 5:59 pm. Complainant claimed that since she already
used four hours of the day standing/walking under her medical restrictions, she was unable to
close out her cash till because she would have to walk to the front counter.

M1 stated that on March 6, 2014, S1 notified M1 at 5:45 p.m. that Complainant, sitting on her
chair, was refusing to walk to the front counter to close out her cash till/drawer. Thus, M1 went
to Complainant and asked her three times to close out her till. Complainant refused to do so
claiming it was a safety violation and violated her medical restrictions since she already had
stood at the window for four hours under her medical restrictions. M1 acknowledged that M1
then tried to push her in a chair she was sitting in to get her to the counter since she refused to
walk just 15 feet to the counter but Complainant got out of the chair.

S1 indicated that at the relevant time, S1 repeatedly instructed Complainant to close out her cash
drawer. Complainant refused to do so. S1 also stated that when S1 asked Complainant if she
knew the consequences of her refusal to follow the instructions, she replied, “Plead the fifth;”
and when S1 asked her if she understood S1’s instructions, she replied, “Plead the fifth, I don’t
know.” Complainant does not dispute this. S1 further stated that when Complainant continued
to refuse to follow the instruction, S1 told her to clock out. Complainant walked out to her car
which was 40-50 feet away. Complainant does not dispute that she was required to close her
cash drawer at the end of her modified window clerk duties.
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S1 indicated that on March 29, 2014, S1 issued Complainant the Seven-Day Suspension due to
her unacceptable conduct/failure to follow instructions as described above. Complainant failed
to show that she was treated less favorably than a similarly situated employee under similar
circumstances. Furthermore, we find that Complainant failed to show that she was required to
take any action in violation of her medical restrictions on March 6, 2014. Although M1 should
not have pushed Complainant’s chair while Complainant was in her chair, Complainant has
failed to show that walking 15 feet to drop off the cash till violated her medical restrictions. The
“sitting break” that Complainant took is not listed in her medical restrictions and thus
Complainant could have taken the cash till, as ordered, to the appropriate place at the end of her
shift.

Regarding claim (6), M1 denied she grabbed Complainant’s waist as alleged. M1 indicated that
at the relevant time, M1 went to shake Complainant’s hand for her helping another employee
with a difficult transaction; and when she told M1 not to touch her, M1 did not shake her hand or
touch her. On appeal, Complainant does not dispute M1’s statements and indicates that at the
relevant time, she turned and walked away from M1 so she wouldn’t be touched. We find that
Complainant failed to show by persuasive evidence that M1 grabbed Complainant’s waist.

Regarding claim (7), Complainant claimed that she requested and was approved by S1 for
LWOP for the period at issue. Complainant acknowledged that S1 later informed her that he
made a mistake entering sick leave instead of LWOP and when S1 offered to correct the mistake
and change sick leave back to LWOP, Complainant told him it was too late and she did not
pursue the matter any further. M1 indicated that she, and not S1, was responsible for filling out
the time sheet entry for the period for May 20 – 24, 2014, at issue. M1 stated that M1 did not
have and was not provided with Complainant’s leave form for that period. Thus, M1 stated that
M1 entered sick leave so as to ensure Complainant was paid for the period. M1 denied her
action was based on discrimination as alleged. We find that Complainant failed to prove by a
preponderance of the evidence that the Agency’s handling of her leave at issue in claim (7) was
discriminatory.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Complainant acknowledged that at the relevant time, she was unable to
perform her position duties without accommodation and the Agency accommodated her
disabilities by placing her in a modified position. Furthermore, we find that Complainant failed
to show that she was treated less favorably than a similarly situated employee under similar
circumstances. Regarding her claim of harassment, we find that Complainant failed to establish
the severity of the conduct in question or that it was related to any protected basis of
discrimination. Based on the foregoing, we find that Complainant has failed to show that the
Agency’s action was motivated by discrimination as alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.
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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.
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

December 8, 2017
Date