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

Equal Employment Opportunity Commission

Jan 8, 2016

0120141796 (E.E.O.C. Jan. 8, 2016)

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

Marti F.,1
Complainant,

v.

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

Appeal No. 0120141796

Agency No. 1K-301-0022-13

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
March 13, 2014 final Agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Support Clerk at the Agency’s Processing and Distribution Center in Atlanta, Georgia. On
July 31, 2013, Complainant filed a formal complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the bases of race (African-
American), sex (female), disability, age (44), and in reprisal for prior protected EEO activity
as evidenced by multiple incidents including, inter alia, she was denied overtime opportunities;
she was not allowed to make up missed time at the end of her shift and her leave requests were
not coded approved in advance; her requests for changes of schedule were denied; her requests

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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for leave were denied on multiple occasions in February, March, and April 2013, and she was
charged Absent Without Official Leave (AWOL) and/or unscheduled leave; she was not paid
properly for hours worked on several occasions; she was issued a 14-Day Suspension for
Failure to Maintain Regular Attendance/AWOL; and management has not responded to her
reasonable accommodation request to be reassigned to a different administrative supervisor.2

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
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially noted that Complainant failed to provide an affidavit during
the investigation and failed to provide any evidence in support of her allegations. Next, the
Agency determined that alleged incidents were not sufficiently severe or pervasive to establish
a hostile work environment and that management had articulated legitimate, nondiscriminatory
reasons for its actions. More specifically, regarding her overtime claims, Complainant’s
supervisor (S1) stated that there were occasions when someone failed to show for work and
Complainant felt that she should have been called in to work on her unscheduled day. S1
noted that he would then have to guarantee her eight hours. Instead, S1 would either do
without covering the position or have someone who was already available work a few extra
hours without having to incur the eight-hour guarantee. Further, S1 added that Complainant
and two other employees volunteered to work on Christmas Day, but only one person was
needed and the senior volunteer was scheduled.

With respect to Complainant’s make-up time claim, S1 affirmed that Complainant often arrived
several hours later than her scheduled tour start time and wanted to make up the missed time at
the end of her tour. S1 stressed that he denied her requests because employees must be able to
maintain a regular work schedule. As to her leave and change of schedule request claims, S1
stressed that he approved Complainant’s change of schedule requests that were properly
submitted in advance. S1 noted that he did not have a record of Complainant submitting a
schedule change request between January 21, 2013 and March 20, 2013. Further, S1 stated
that Complainant incurred multiple instances of AWOL in February, March, and April 2013,
because she failed to submit leave request slips in advance of her absences.

As to Complainant’s claim that she was not paid properly on several occasions in March 2013,
the Agency determined that the record did not support this allegation. S1 confirmed that
Complainant only worked 3.06 hours on March 5, 2013, and received 4.94 hours of AWOL
since she did not report to work as scheduled. On March 12, 2013, S1 stated that Complainant
did not work on that date and was paid for eight hours of annual leave. S1 added that on

2 The Agency dismissed an additional claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim. Complainant raised no challenges to this dismissal on appeal; therefore, the
Commission will not address it in this decision.
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March 18, 2013, Complainant did not report to work at all and called the automated absence
control system indicating that she wanted 12.76 hours of annual leave for March 18 - 20,
2013. Since Complainant indicated that she would be absent for a period of 24 hours, 12.76
hours would not cover her absence. Complainant received eight hours of annual leave for both
March 18 and 20, 2013. Complainant reported to work late on March 19, 2013.

Regarding the suspension, S1 emphasized that he issued it based on Complainant’s failure to
maintain regular attendance and for repeated instances of AWOL. S1 noted that from
February 12, 2013 through February 20, 2013, Complainant had 27 hours of AWOL. S1
added that the suspension was the next progressive step based on Complainant’s prior
disciplinary record. The Maintenance Manager (M1) concurred with issuing the suspension.

Finally, with respect to Complainant’s denial of reasonable accommodation claim, the Agency
first found that Complainant offered no testimony regarding her alleged medical condition that
she described in her complaint only as “mental.” The only available evidence was a copy of a
document signed by Complainant’s doctor indicating that she was receiving treatment, but
containing no information as to what the treatment was for or what was Complainant’s
diagnosis. Additionally, there was no evidence as to how or even if this condition for which
Complainant was receiving treatment impacted her ability to perform any major life activity.
Accordingly, the Agency determined that Complainant failed to show that she is an individual
with a disability.

Even assuming that Complainant showed that she is an individual with a disability, the Agency
found that Complainant failed to show that management denied her reasonable accommodation.
The record showed that S1 submitted a Referral for Reasonable Accommodation Consideration
to the District Reasonable Accommodation Committee on April 15, 2013, for Complainant.
S1 indicated on that request that Complainant's request for accommodation consisted of a
request for a reduced work schedule and a change of supervisor. On April 19, 2013 and May
8, 2013, the DRAC sent Complainant requests for medical documentation in support of her
accommodation request. Complainant failed to respond to either request. On June 26, 2013,
Complainant was notified that she was scheduled to meet with the DRAC on July 2, 2013, to
discuss her request for accommodation. Complainant failed to attend the meeting. On July
19, 2013, Complainant was advised by the DRAC that her case was considered closed because
of her failure to cooperate with the committee and respond to the two requests for information
or meet with the committee as scheduled. As a result, the Agency found that Complainant had
not been denied reasonable accommodation in violation of the Rehabilitation Act. Complainant
filed the instant appeal without submitting any arguments or contentions in support.

ANALYSIS AND FINDINGS

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
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patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510U. S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).

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. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on her protected classes, management continuously subjected
her to a hostile work environment based on several incidents where Agency officials took
actions that seemed adverse or disruptive to her. The Commission concludes that the alleged
incidents at issue in their totality are insufficiently severe or pervasive to establish a hostile
work environment. Even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, there is no persuasive evidence in the record
that discriminatory or retaliatory animus played a role in any of the Agency's actions. The
record reflects that the alleged incidents were more likely the result of routine supervision,
managerial discipline, personality conflicts, and general workplace disputes and tribulations.
Furthermore, Complainant has not shown that the Agency's reasons for its actions were a
pretext for discrimination or reprisal. As a result, the Commission finds that Complainant has
not established that she was subjected to discrimination, reprisal, or a hostile work
environment as alleged.

Finally, to the extent that Complainant alleges that the Agency failed to reasonably
accommodate her disability the Commission finds that Complainant’s claim must fail. The
Commission agrees with the Agency that Complainant failed to show that she is a qualified
individual with a disability. The record reveals that Complainant sought an accommodation for
her mental condition; however, she failed to produce sufficient documentation to the DRAC in
support of her request and failed to attend a meeting with the DRAC to address her need for
accommodation. When an individual's disability or need for reasonable accommodation is not
obvious, and the individual fails to provide reasonable documentation requested by the
employer, the employer will not be held liable for failure to provide the requested
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accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 6 (as
revised Oct. 17, 2002). Accordingly, the Commission finds that Complainant has not
demonstrated that she was denied a reasonable accommodation in violation of the
Rehabilitation Act.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, 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 (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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).

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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. 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

January 8, 2016
Date