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

Equal Employment Opportunity Commission

Dec 20, 2017

0120152001 (E.E.O.C. Dec. 20, 2017)

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

Marybeth C.,1
Complainant,

v.

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

Appeal No. 0120152001

Agency No. 1K-211-0036-13

DECISION

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 April 30, 2015, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

Complainant worked as a Mail Processing Clerk at the Agency’s Processing and Distribution
Center in Baltimore, Maryland. On September 2, 2013, Complainant filed an EEO complaint in
which she alleged that a Manager of Distribution Operations (MDO) discriminated against her
on the basis of disability (left shoulder impingement, bilateral carpel tunnel syndrome, and
tenosynovitis in both hands) by allowing other injured-on-duty employees to remain at work in a
“quiet room,” while sending her home in April 2009 and forcing her to remain out of work until
August 26, 2013. In a final decision dated October 29, 2013, the Agency found that the claim
raised in the instant complaint was identical to the claim raised in Velva B., et. al., v. United

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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States Postal Service, a class action complaint.2 Investigative Report (IR) 189. The Agency
concluded that Complainant’s complaint should be subsumed within the Velva B. class
complaint. However, in Complainant v. United States Postal Service, EEOC Appeal No.
0120140634 (March 25, 2014), we reversed that decision and ordered the Agency to process the
complaint, noting that the record was devoid of evidence that Complainant was denied work as a
result of the national reassessment process (NRP) at issue in Velva B.3

Complainant described her physical conditions as consisting of a left shoulder impingement,
bilateral carpal tunnel syndrome, and tenosynovitis in both hands. These conditions prevented
her from engaging in repetitive motion with her hands, lifting, pushing, or pulling more than ten
pounds, holding objects above her elbows, or reaching over her head. IR 95-96, 118-19. She
averred that although she never formally requested a reasonable accommodation or otherwise
appeared before a District Reasonable Accommodation Committee, she was given limited duty
assignments on August 7, 2007 and February 17, 2009. Those assignments primarily consisted
of conducting volume check counts on incoming and outgoing mail. IR 96-99, 111-13, 182-85,
205, 247.

Complainant stated that her modified limited duty assignment did not include scanning mail, and
that the MDO and the assistant MDO added in that function around March 8, 2009. IR 96, 129-
30. She averred that using the scanner caused her to experience pain and discomfort in her hands
and shoulder. IR 119-21, 125. In a handwritten memorandum dated April 30, 2009,
Complainant stated that one week earlier, she had informed the MDO that she was under medical
restrictions not use a scanner until May 7, 2009, and that shortly thereafter, the MDO sent
Complainant home after telling her that if she could not use the scanner, there would not be any
work for her to do. IR 102, 124-125. Because the MDO had retired in December of 2013, she
did not provide an affidavit. The only record of the MDO’s response to the complaint is
contained in the report of a Dispute Resolution Specialist (DRS) involved with the complaint at
the pre-formal stage. The MDO had informed the DRS that Complainant had been unable to
work in her position as a mail processing clerk due to her injury and that she had sent a request to
the managers of other tours to find work within her restrictions, which proved unsuccessful until
August 22, 2013. The MDO stated that Complainant could not use her hand and was sent home
in continuation of pay status. IR 32.

2 Velva B, et al. v. U.S. Postal Service, EEOC Appeal Nos. 0720160006 & 0720160007 (Sept.
25, 2017), request for reconsideration pending, EEOC Request No. 0520180095.

3 For example, we noted in Appeal No. 0120140634 that the record did not contain a letter or
memorandum that Complainant was being placed off work due to the NRP. Id. at n. 2. In the
case now before us, the investigative record includes the NRP plan as well as a statement that on
an unspecified date, an activity file had been prepared for Complainant during the first phase of
the NRP. IR 204, 271-315. However, Complainant never claimed that she was removed from
her position as a result of the NRP. Indeed, in the appeal that led to our previous decision on this
matter, Complainant emphasized that her claim is distinguishable from the NRP-based pattern-
and-practice claim that is at the heart of Velva B.
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Complainant remained out of work between April 30, 2009 and August 26, 2013. In August or
September of 2010, Complainant submitted a letter to the MDO requesting the opportunity to
return to work and submitting medical documentation. The MDO stated that upon review of
Complainant’s medical documentation, the Agency was unable to identify an assignment within
the local commuting area within her medical limitations. IR 132. On August 22, 2013,
Complainant was offered the opportunity to return to work in another modified limited duty
assignment, this time as a Lobby Director, which she accepted.4 IR 98-99, 114-15, 151. Her
duties included assisting customers with retail transactions, performing monthly operational
audits, answering questions regarding postal products and services, and assisting with passport
applications. 184-85. She was not required to do any scanning, filing, or otherwise engage in
repetitive motions outside of her medical restrictions. IR 108, 196.

Complainant claimed that on August 15, 2013, she became aware that several other employees
who were in limited duty status were allowed to sit in a “quiet room” for five days a week, eight
hours a day, and still get regular pay while she was sent home and forced to live on workers’
compensation for four years. IR 26. The quiet room was a room located on the sixth floor of the
processing and distribution center where employees could take breaks from their shifts. IR 101,
198. According to the Assistant MDO, no radios or televisions were allowed in the quiet room
and no work was performed in there either. IR 225. Complainant identified as a comparative a
clerk, who had tenosynovitis, who had been allowed to remain in the quiet room between May
2009 and September 2010, that she was sent home and placed on workers’ compensation in
September 2010, and that she returned to work in January 2013. Complainant admitted however,
that this individual was on a different tour and had a different supervisor than her. IR 103.
Complainant also identified six other limited duty employees who she maintains were sent to the
quiet room from the work floor by the MDO under the pretense of work not being available. She
averred that these individuals were given the opportunity to return to work before her. IR 100,
140.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Although Complainant initially requested
a hearing, she withdrew her request on February 10, 2015. In accordance with Complainant’s
request, the AJ remanded the matter to the Agency. The Agency then issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). That decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

4 The Health and Resources Manager informed the DRS that on August 13, 2013, that she was in
the process of meeting with her staff in an attempt to find available work for Complainant that
was within her medical restrictions. IR 32. This individual was also named by Complainant as a
responding management official in the complaint, but is now deceased. IR 7, 12, 32, 98.
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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”).

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
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima
facie inquiry may be dispensed with in this case, however, since the MDO had articulated a
legitimate and nondiscriminatory reason for not returning Complainant to work before August
26, 2013, namely that until that time there was no work available that fit within Complainant’s
medical restrictions. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dept. 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); Texas
Dept. of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v.
Dept. of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). She may demonstrate pretext
by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal
No. 0120060802 (November 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008).

Complainant averred that she was sent home in April 2009 while the injured coworkers who she
identified as comparatives were sent from the work room floor to the quiet room on orders from
the MDO. IR 99, 101. When asked why she believed her disability was a factor in the long
delay in allowing her to return to work, she replied that, “my disability prevented me from
staying in the [Agency].” IR 100. She also averred that Agency regulations were violated, but
did not specify which ones. IR 103. In addition, she stated that a grievance had been filed
against the MDO in connection with her practice of allowing injured employees to spend their
entire tours in the quiet room. IR 103. The Assistant MDO averred that she knew of no
violations of Agency regulations by any manager and that she could not recall any grievance
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being filed. IR 226. Beyond her own assertions, Complainant has not presented affidavits,
declarations, or unsworn statements from witnesses other than herself or documents which
contradict the explanation provided by the MDO to the DRS or which call her veracity into
question. We therefore agree with the Agency that Complainant has not established that
unlawful considerations of her disability on the part of the MDO were a motivating factor in her
not returning to work until August 26, 2013.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that she was discriminated
against as alleged.

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.
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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. 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 20, 2017
Date